FIRST SECTION
CASE OF
ASYANOV v. RUSSIA
(Application no. 25462/09)
JUDGMENT
STRASBOURG
9 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Asyanov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 25462/09)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Rinat Rashidovich Asyanov (“the
applicant”), on 8 April 2009.
The applicant was represented by Ms A. Polozova,
a lawyer practising in Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that he had
been detained in appalling conditions in which he had contracted tuberculosis
and that the anti-tuberculosis treatment he had received had been inadequate.
On 3 September 2009 the President of the
First Section decided to give notice of the application to the Government. It
was also decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
On 4 August, 7 and 20 September 2011
the Court requested further factual information from the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1974 and lives in Moscow.
A. Criminal proceedings against the applicant
The applicant worked for a real-estate agency in Moscow. In early 2007 the Moscow police were tipped off that M., the representative of a private
company, was looking for a way to obtain State registration of the company’s
property rights to certain premises. As registration had been previously
refused, M. needed someone who would be able to prepare a registration package
in a professional manner and who would preferably have connections in the
Federal Registration Service. M. approached the applicant, who introduced him
to a middleman prepared to “solve the problem” on the condition that M. give
them 250,000 US dollars to bribe officials of the registration service, plus
15,000 US dollars as their fee.
The police opened an inquiry into corruption in
the Federal Registration Service. The phone lines of the middleman and three
other people, but not the applicant’s line, were tapped.
However, as it turned out, the applicant and the four
other individuals had never intended to use any money to bribe State officials
but rather had planned to divide the entire sum between themselves. One of them
was an official with the Moscow registration service, who was to observe the
progress of the application for registration as it was being processed by his
colleagues and report back to his accomplices.
On 25 April 2007 the applicant and the other
individuals were arrested by the police when M. brought them the last
instalment of money in exchange for the registration certificate. All the
accomplices were charged with attempted fraud, of which M. was stated to be the
victim.
On 17 July 2008 the Moscow Simonovskiy District
Court convicted the applicant and his co-defendants as charged and sentenced
them to five years’ imprisonment. During the trial the applicant maintained
that he had had no intention of defrauding M. and that he had merely
facilitated M.’s contacts with the middlemen.
On 20 October 2008 the Moscow City Court upheld
the conviction on appeal.
B. Conditions of the applicant’s detention
1. General conditions of detention
Between 28 April 2007 and 5 November 2008 the
applicant was held in remand prison no. IZ-77/1 in Moscow.
(a) Description provided by the Government
(i) Cell population
As regards cell population, the Government produced
certificates prepared by the remand prison administration and extracts from the
remand prison’s population register. The information contained therein can be
summarised follows:
|
Cell
no.
|
Period
of detention
|
Surface
area (in square metres)
|
Number
of inmates
|
Number
of beds
|
|
From 28 April
to 4 May 2007
|
43
|
-16
|
|
|
From
4 May to 1 October 2007
|
9
|
-7
|
|
|
From 1
to 3 October 2007
|
7
|
|
|
|
From 3
to 16 October 2007
|
7
|
|
|
|
From
16 to 22 October 2007
|
5
|
|
|
|
From 22 October
2007 to 18 March 2008
|
7
|
-16
|
|
(hospital)
|
From
18 March to 10 April 2008
|
66
|
-6
|
|
(hospital)
|
From 10 April
to 5 November 2008
|
3
|
-12
|
|
In view of certain amendments made on the face
of the documents provided in respect of cell population, the Court asked the
Government to submit a complete copy of the remand prison’s population
register.
On 7 December 2011 the Government informed
the Court that the prison’s population register covering the period between 28 April
2007 and 15 April 2008 had been lost.
(ii) Other aspects
According to the Government, all cells in the
remand prison were equipped with mandatory ventilation in good working order.
In addition, the windows were equipped with vents to ensure natural ventilation
of the premises. All cells had a sink and a toilet which was separated from the
living area by a 1.2 m high partition. The dining table was located at least
1 m away from the toilet. The metal bars installed on the windows did not
prevent access to daylight through the glass window panes. During the day, the
lighting was on from 6 a.m. to 10 p.m. At night lower-voltage bulbs were used
to maintain lighting in the lavatory. The applicant was allowed to exercise for
at least one hour per day. The remand prison was equipped with fifty-eight
exercise yards measuring from 15.4 square metres (sq. m.) to 85.17
sq. m. The yards were arranged in such a way as to provide the inmates with
the opportunity for physical exercise. They were equipped with benches and were
sheltered from the rain.
(b) The applicant’s submissions
The applicant accepted the veracity of the
information submitted by the Government as regards the cell numbers and size,
the number of sleeping places per cell and the periods of his detention there. As
regards the cell population, the applicant submitted as follows:
|
Cell
no.
|
Period
of detention
|
Surface
area (in square metres)
|
Number
of inmates
|
Number
of beds
|
|
From
28 April to 4 May 2007
|
43
|
More
than 22
|
|
|
From
4 May to 1 October 2007
|
9
|
-18
|
|
|
From 1
to 3 October 2007
|
7
|
|
|
|
From 3
to 16 October 2007
|
7
|
-32
|
|
|
From
16 to 22 October 2007
|
5
|
More
than 6
|
|
219
|
From 22 October 2007 to 18 March 2008
|
27.7
|
More than 22
|
16
|
|
717 (hospital)
|
From 18 March to 10 April 2008
|
16.66
|
8
|
8
|
|
365 (hospital)
|
From 4 April to 5 November 2008
|
30.3
|
16
|
16
|
According to the
applicant, the cells did not have natural or mandatory ventilation. Windows
were covered with thick metal bars and did not open. The electric lighting was
constantly on. It was dim and insufficient. The metal bars on the windows
prevented access to daylight.
He further submitted that cells nos. 109, 277,
202, 219 and 223 were not equipped with a toilet. Instead there was a hole in
the floor which was not separated from the living area of the cell. In the
other cells the toilet pan was not separated from the living area and was
located in the immediate proximity of the dining table. The applicant was allowed
exercise outside on a daily basis. It lasted from forty minutes to an hour and
took place in a special yard. Too many inmates (from ten to fifteen) were brought
to the yard at the same time, which made physical exercise impossible. The food
was of low quality. The inmates were allowed one shower per week for no longer
than fifteen minutes. There was no hot water supply in the cells. On many
occasions inmates infected with tuberculosis, hepatitis or meningitis were
placed in the same cell as the applicant.
2. The applicant’s medical condition
(a) Osteochondrosis
On 20 July 2007 the applicant felt pain in the
small of his back and numbness in his left leg with partial loss of motor
activity. He was seen by a surgeon, who recommended an X-ray of the lower
lumbar region.
On 13 August 2007 the applicant was transferred
to the prison hospital in connection with osteochondrosis of the lumbosacral
region of the spine, aggravated by radiculopathy. He received treatment for ten
days and was told to use a walking cane.
(b) Tuberculosis
On 5 May and 2 November 2007 the
applicant underwent a chest x-ray test. On 6 November 2007 he had a
tomography scan. According to the applicant’s medical records, the test results
were negative.
On 18 March 2008 the applicant was admitted
to the prison hospital, where he was to undergo treatment for osteochondrosis. On
28 March 2008 the applicant had another x-ray examination which spotted
certain changes in his lungs.
From 8 April to 7 September 2008 the
applicant received special anti-tuberculosis inpatient treatment. Subsequently,
the applicant continued to receive outpatient treatment.
On 14 November 2008 the applicant was
transferred to medical correctional facility LIU-3 where he underwent further
treatment. He was released on parole on 30 November 2009.
On 1 December 2009 the applicant underwent
an examination in an outpatient clinic in Moscow. He had a computer tomography
test which “did not exclude the possibility of infiltrative tuberculosis with
one area of disaggregation”. The applicant did not provide any further
follow-up on his condition.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained about the conditions of
his detention in remand prison no. IZ-77/1 in Moscow from 27 April
2007 to 5 November 2008. He further complained that he had contracted
tuberculosis there and that he had not received adequate treatment in this respect.
He referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
Referring to the certificates prepared by the administration of the remand
prison and extracts from the remand prison’s population register, they
submitted that the conditions of the applicant’s detention had been in
compliance with the requirements of Article 3 of the Convention. As regards
the applicant’s medical condition, the Government submitted a copy of the
applicant’s medical records, which confirmed the fact that the applicant had
been diagnosed with tuberculosis in March 2008. However, in their observations
of 20 January 2010, the Government indicated that the applicant had been
suffering from tuberculosis prior to his remand in custody in April 2007. They
further asserted that the applicant had received proper treatment for
tuberculosis in compliance with international standards. The penal establishments
in which the applicant had been detained had been provided with the necessary
medicine and equipment. The medical personnel who had treated the applicant had
been trained to properly administer anti-tuberculosis treatment. The
Government relied on the certificates prepared by the medical correctional facility’s
administration. They also provided copies of the medical education certificates
of the facility’s personnel.
The applicant maintained his complaint. He
asserted that at all times he had been detained in overcrowded cells offering
less than 2 sq. m of personal space. Some of the inmates had been suffering
from tuberculosis. As a result, he had contracted tuberculosis. The treatment
he had undergone while in detention had been inadequate and his condition had worsened.
He denied the Government’s allegation that he had been infected with
tuberculosis prior to his arrest.
A. Admissibility
As regards the applicant’s allegations
concerning his contracting tuberculosis and subsequent treatment, the Court reiterates
that even if the applicant had contracted tuberculosis while in detention, this
fact in itself would not necessarily imply a violation of Article 3, provided
that he received treatment for it (see Babushkin
v. Russia, no. 67253/01, § 56, 18 October
2007, and Alver v. Estonia,
no. 64812/01, § 54, 8 November 2005). However, a lack of adequate medical
assistance for serious diseases which one did not suffer from prior to
detention may amount to a violation of Article 3 (see Hummatov
v. Azerbaijan, nos. 9852/03 and 13413/04, § 108 et seq.,
29 November 2007).
The
national authorities must ensure that diagnosis and care in detention facilities,
including prison hospitals, are prompt and accurate, and that, where
necessitated by the nature of a medical condition, supervision is regular and
involves a comprehensive treatment plan aimed at ensuring the detainee’s
recovery or at least preventing his or her condition from worsening (see Sakhvadze
v. Russia, no. 15492/09, § 83,
10 January 2012).
In the present case, the Court notes from the
outset that the medical documents submitted by the Government confirmed that
any changes in the applicant’s lungs were only detected in March 2008. The
Court accordingly dismisses the Government’s contention that the applicant had
been suffering from tuberculosis prior to his remand in custody as unsupported
by any evidence.
The Court further observes that, according to
the Government’s submissions, which were not disputed by the applicant, the applicant
was under constant medical supervision and received adequate medical assistance
after the tuberculosis was detected. Nothing in the case file can lead the
Court to the conclusion that the applicant did not receive comprehensive
medical treatment for his stage of tuberculosis.
In view of the above considerations, the Court
finds that this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
As regards the applicant’s complaint about the
general conditions of his detention in the remand prison, the Court notes that this
part of the application is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that it
is not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The Court notes that the parties disagreed on
most aspects of the conditions of the applicant’s detention. However, where
conditions of detention are in dispute, there is no need for the Court to
establish the veracity of each and every disputed or contentious point.
Furthermore, the Court observes that Convention
proceedings do not in all cases lend themselves to a rigorous application of
the principle affirmanti
incumbit probatio (“he who alleges something must prove it”) because
in certain instances, such as in the present case, the respondent Government
alone have access to information capable of corroborating or refuting
allegations. Failure on the Government’s part to submit such information
without a satisfactory explanation for such a failure may give rise to the
drawing of inferences as to the validity of the applicant’s allegations (see
Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426,
6 April 2004).
In support of their assertion that the
conditions of the applicant’s detention had been in full compliance with
Article 3 of the Convention, the Government produced certificates issued
by the prison administration as well as copies of extracts from the prison’s
population register.
The certificates from the prison administration presented
in a summary form the information contained in the prison’s population
register.
In this connection, the Court observes that certain
entries in respect of the number of detainees in the cells where the applicant was
detained had been visibly amended. In order to verify the data provided
concerning the prison population, the Court requested that the Government
furnish a complete copy of the register. The Government responded that the register
in respect of the period between 28 April 2007 and 15 April 2008 had
been lost. In these circumstances, the Court considers that the information contained
in the copy of the prison’s population register produced by the Government is
not sufficiently reliable to establish the facts.
As regards the ensuing period of the applicant’s
detention from 15 April to 8 November 2008, the Court observes that,
according to the prison’s population register, the personal space available to
the applicant did not exceed 2.8 square metres.
Having regard to the above, the Court considers
the applicant’s allegations concerning the overcrowding of the remand prison to
be credible. As a result of such overcrowding, the applicant’s detention did
not meet the minimum requirement, as laid down in the Court’s case-law as to
the number of square metres per person (see, among many other authorities, Ananyev
and Others v. Russia, nos. 42525/07 and 60800/08, §§ 120-38, 10 January 2012; Trepashkin
v. Russia (no. 2), no. 14248/05, § 113, 16 December 2010; Kozhokar
v. Russia, no. 33099/08, § 96, 16 December 2010; and Svetlana
Kazmina v. Russia, no. 8609/04, § 70, 2 December
2010). Having regard also to the fact that the applicant had to spend twenty-three
hours per day in an overcrowded cell, the Court finds that he was subjected to
inhuman and degrading treatment in breach of Article 3 of the Convention on
account of the conditions of his detention in remand prison no. IZ-77/1 in
Moscow from 28 April 2007 to 5 November 2008.
In view of the above, the Court does not
consider it necessary to examine the remainder of the parties’ submissions
concerning other aspects of the conditions of the applicant’s detention during
the period in question.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 6 of the Convention that M. had been a police agent who had
incited him to commit a crime and under Article 8 of the Convention that
the decision to tap his co-defendants’ telephone lines had amounted to unlawful
interference because he had made calls to their numbers.
However, having regard to all the material in
its possession and, in so far as the matters fall within its competence, the
Court finds that the events complained of do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as manifestly
ill-founded pursuant to Articles 35 § 3 and 4 of the
Convention.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant
claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
The Government considered
such a claim excessive.
The Court
observes that the applicant spent over a year and a half in the remand prison
in inhuman and degrading conditions. Making its assessment on an equitable
basis, it awards him EUR 6,500 plus any tax that may be chargeable thereon.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
conditions of the applicant’s detention from 28 April 2007 to
5 November 2008 in remand prison no. IZ-77/1 in Moscow admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 6,500 (six
thousand and five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement.
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
