FIRST SECTION
CASE OF
KULIKOV v. RUSSIA
(Application no.
48562/06)
JUDGMENT
STRASBOURG
27 November 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 Kulikov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 6 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
48562/06) 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 Sergey Nikolayevich Kulikov (“the
applicant”), on 24 October 2006.
The applicant, who had been granted legal aid,
was represented by Ms Y. Yefremova, 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.
On 27 August 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1983 and is serving a
prison sentence in the Sverdlovsk Region.
On an unspecified date the applicant was charged
with several counts of sexual abuse of two boys of minor age. On 31 March 2005 he
was arrested and remanded in custody. He was held in a temporary detention
centre in Nizhniy Tagil. The cell where he was detained was allegedly
overcrowded. On 20 May 2005 the applicant was released, pending trial, on
his own recognisance.
A. Conditions of detention in remand prison
no. IZ-66/1 in the Sverdlovsk Region
On 27 May 2006 the applicant was again placed in
custody. He was held in remand prison no. IZ-66/1 in the Sverdlovsk Region,
where he remained until 8 August 2006. The applicant was detained in cell
no. 235 measuring 31.5 square metres.
1. The description provided by the Government
The Government provided the following description
of the conditions of the applicant’s detention in the remand prison. The number
of the inmates held in the cell varied from 24 to 32 persons. The applicant was
provided with an individual sleeping place and bedding. The cell was equipped
with a water supply as well as heating and sewage systems. The ventilation in
the cell was in good working order. The temperature maintained in the cell was 240C
during the summer. The toilet was separated from the living area of the cell by
a 1.1metre-high partition which ensured sufficient privacy for the person using
it. It was located at a significant distance from the nearest bed and the
dining table. The applicant was allowed to take a shower once a week.
In support of their observations, the Government
submitted a copy of the remand prison population register and certificates
prepared by the administration of the remand prison and correctional facility
in September and October 2009.
2. The description provided by the applicant
According to the applicant, the cell where he
was detained was constantly overcrowded. Its population varied from 27 to 37 - and
on one occasion reached 40 - inmates. There were 14 beds in the cell, one of which
was used as a table. The applicant was not provided with any bedding. The
ventilation system did not work. The cell was very hot and stuffy. The electric
lighting was weak and it was impossible to read. The cell was infested with bed
bugs and cockroaches. The toilet was located some 1.5 metres from the
nearest bed and some 2 metres from the dining table. It was separated from the
living area of the cell by a 1 metre-high partition which provided no privacy to
the person using the toilet. The applicant was permitted to take a shower once
every two weeks.
In support of his own submissions, the applicant
provided the Court with the written statement of inmate S. who had been detained
in the same remand prison in 2010.
B. Conditions of detention in correctional facility no. IK-5 in the Sverdlovsk Region
Following the applicant’s conviction, from
15 August 2006 to 19 August 2009 he served a prison sentence in
correctional facility no. IK-5 in the Sverdlovsk Region. The correctional
facility measured 10,650 square metres in total. The applicant was detained in
units 9 and 11. The number of detainees housed in the facility during the
period in question varied from 1,718 to 2,095.
1. The description provided by the Government
According to the Government, unit 9 measured 342.2
square metres (the living area measuring 191.5 square metres) and housed from
135 to 158 detainees. The sanitary area of the unit was equipped with nine
wash basins and three toilets.
Unit 11 measured 345.6 square metres (with the
living area measuring 180.1 square metres) and housed from 133 to 165 detainees.
The sanitary area of the unit was equipped with eight wash basins and two toilets.
The applicant had been provided with underwear,
clothes and shoes. He had received the necessary medical care. He had been
allowed two family visits.
On several occasions in 2007 the applicant was
placed in a disciplinary cell. The Government provided the following
information as regards the number of inmates sharing the disciplinary cell from
a copy of the relevant population register.
|
Period of detention
|
Cell no.
|
Cell surface area (sq. metres)
|
Number of beds
|
Number of detainees
|
|
From 5 to 10 February
|
|
3
|
|
|
June
|
|
0
|
|
|
|
From 5 to 21 June
|
|
0
|
|
-5
|
|
From 4 to 7 July
|
|
9
|
|
|
August
|
|
0
|
|
|
|
From 4 to 13 August
|
|
8
|
|
-4
|
From 22 to 30 October
|
|
0
|
|
-5
|
The disciplinary cells were provided with a
toilet located some 3 metres from the dinner table and separated from the
living area of the cell by a 1 metre-high partition. The water supply and the
sewage, ventilation and heating systems were in good working order. The average
temperature in the disciplinary cells ranged from 18 to 220C.
All detainees, before being placed in a
disciplinary cell were subjected to a full body search and were also searched
(fully clothed) before and after each session of daily exercise. These searches
were not monitored by video camera.
The applicant was allowed to use the shower
facilities, which comprised twelve shower units.
2. The description provided by the applicant
According to the applicant, unit 9 measured 190
square metres and housed from 145 to 165 detainees. The sanitary area of the
unit was equipped with four wash basins and three toilets. Unit 11 measured 180 square
metres and housed from 145 to 165 detainees. The sanitary area of the unit was
equipped with five wash basins and two toilets. Shower facilities were made
available to the detainees once a week for two and a half hours during which
time they were used by up to 150 inmates so each person had around one minute
in which to take a shower. During the day, the inmates were allowed to move
freely only within the unit they were assigned to and within an adjacent area
of 300 square metres - together with the inmates assigned to two other units. There
had been 450 inmates, in total, sharing the three units.
As regards the applicant’s placement in a
disciplinary cell, he provided the following information.
|
Period of detention
|
Cell no.
|
Cell surface area (sq. metres)
|
Number of detainees
|
|
From 5 to 22 February
|
|
0
|
|
|
From 4 to 5 June
|
|
0
|
|
|
From 5 to 21 June
|
|
0
|
|
|
From 4 to 7 July
|
|
0
|
|
|
From 3 to 4 August
|
|
0
|
|
From 4 to 13 August
|
|
0
|
|
From 22 to 30 October
|
|
0
|
|
While in detention in the disciplinary cells,
the applicant had not been provided with his own bed and had to take turns with
other inmates to sleep. The toilet was located some 1.5 metres away from the
dining table and separated from the living area of the cell by a 1 metre-high
partition, which offered no privacy to the person using it. The toilets were
dirty and foul-smelling. The applicant had been subjected to a full body search
twice a day before and after the outside exercise periods, when all the inmates
were taken into the hallway and forced to undress. The searches were monitored by
personnel through video cameras - on many occasions by female warders. In
winter the temperature in the hallway did not exceed 180C. The
disciplinary cells were infested with parasites. The food and medical care were
of poor quality.
The applicant further provided a written
statement by inmate Sl., who submitted that approximately 150 inmates had been assigned
to each unit in the correctional facility and that each unit measured
approximately 200-250 square metres. The bunk beds in the dormitories were arranged
in three tiers. The shower facilities comprised ten shower units and some 40 to
60 inmates were allowed two and a half hours in which to use them.
C. Report prepared by the Office of the Prosecutor
General of the Russian Federation
On 19 October 2009 the
Office of the Prosecutor General of the Russian Federation prepared a report
concerning the applicant’s allegations regarding the conditions of his
detention. The Head of the Department for the Supervision of Sentences summed
up the results of the inquiry as follows:
“In the course of the inquiry, the prosecution authorities
established that [the applicant], while detained in cell no. 235 in [the
remand prison] and also in [the correctional facility] had not been provided
with the statutory personal space of 4 and 2 square metres respectively.
However, this violation resulted from the overcrowding of the facilities caused
by circumstances beyond the control of the administration. Accordingly, such conditions
cannot be viewed as amounting to torture, inhuman or degrading treatment in
contravention of Article 3 of the Convention.”
II. RELEVANT DOMESTIC LAW
Section 23 of the Detention of Suspects Act of
15 July 1995 provides that detainees should be kept in conditions which satisfy
sanitary and hygienic requirements. They should be provided with their own
sleeping place and given bedding, tableware and toiletries. Each inmate should
have no less than four square metres of personal space in his or her cell.
Article 99 § 1 of the Penitentiary Code of 8 January 1997
provides for a minimum standard of two square metres of personal space for male
prisoners in correctional colonies.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained of inhuman conditions in
his detention in remand prison no. IZ-66/1 in Yekaterinburg from 27 May
to 8 August 2006 and in correctional facility no. IK-5 in the Sverdlovsk Region from 15 August 2006 to 19 August 2009. 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.”
A. Admissibility
The Government claimed that the applicant had
failed to bring his grievances to the attention of the national courts and
considered that his complaint should be rejected for failure to comply with the
requirements of Article 35 § 3 of the Convention. In particular,
they asserted that it had been open to the applicant to challenge the
lawfulness of the actions of the administration of a remand prison or a
correctional facility or to institute criminal proceedings against them.
The applicant did not comment.
1. Conditions of the applicant’s detention in the
remand prison
As regards the applicant’s complaint concerning
the general conditions of his detention in the remand prison, the Court reiterates
its earlier finding that, at present, the Russian legal system does not offer
an effective remedy for the alleged violation or its continuation which could provide
the applicant with adequate and sufficient redress for the allegedly inadequate
conditions of detention. Accordingly, the Court dismisses the Government’s
objection as to the non-exhaustion of domestic remedies (see Ananyev and
Others v. Russia, nos. 42525/07 and 60800/08, §§ 100-19, 10 January 2012) in respect of this part of the
application.
2. Conditions of the applicant’s detention in the
correctional facility
The Court observes that the applicant did not
complain about the conditions of his detention in the correctional facility to
any domestic authority. On the other hand, it also notes that the Government have
not shown that a complaint to a court about the alleged unlawfulness of the
actions of the administration of the correctional facility could, in fact,
offer preventive or compensatory redress for poor conditions of detention. Nor
have they demonstrated that if the applicant had complained to the authorities
about his detention, this would have substantiated his allegation of a criminal
offence attributable to a public official and thus have required, in the
context of Article 3 of the Convention, a criminal investigation (see Orlov
v. Russia, no. 29652/04, § 64,
21 June 2011). Accordingly, the Government’s objection in this regard is
dismissed.
3. Conclusion
. 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 Government considered that the conditions of
the applicant’s detention in the remand prison had been in compliance with the
standards set forth by Article 3 of the Convention.
The applicant maintained his complaint.
The Court reiterates that Article 3
enshrines one of the fundamental values of a democratic society. The Convention
prohibits in absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances or the victim’s behaviour (see,
among other authorities, Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The
Court has consistently stressed that, in the context of deprivation of liberty,
the suffering and humiliation involved must in any event go beyond the
inevitable element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Although measures depriving a person of
liberty may often involve such an element, in accordance with Article 3 of the
Convention the State must ensure that a person is detained under conditions
which are compatible with respect for his human dignity and that the manner and
method of the execution of the measure do not subject him to distress or hardship
exceeding the unavoidable level of suffering inherent in detention (see Kudła
v. Poland [GC], no. 30210/96, § 92-94, ECHR 2000-XI).
Turning to the facts of the instant case, the
Court notes that the parties disputed certain aspects of the conditions of the
applicant’s detention. However, there is no need for the Court to establish the
veracity of each and every allegation. It can find a violation of
Article 3, even on the assumption that the information provided by the
Government is correct.
In this connection, the Court takes cognisance
of the findings of the inquiry conducted by the Office of the Prosecutor
General of the Russian Federation (see paragraph 24 above) whereby it was
established that the personal space afforded to the applicant both during his
detention in the remand prison and correctional facility had fallen short of
the domestic statutory requirements and that the cells and dormitories where
the applicant had been detained had been overcrowded. In particular, the
applicant was afforded no more than 1.3 square metres of personal space while
detained in the remand prison where he was confined to his cell for most of the
day and 1.41 square metres of personal space during his detention in the
correctional facility. Admittedly, as regards the applicant’s detention in the
correctional facility, the Court has previously held that the personal space
afforded to the detainees in the dormitory of a correctional facility must be
viewed in the context of the wide freedom of movement enjoyed by detainees
during the daytime, which ensures that they have unobstructed access to natural
light and air (see Nurmagomedov v. Russia (dec.), no. 30138/02,
16 September 2004). Nevertheless, in the circumstances of the present
case, the Court considers that the level of privacy available to the applicant
was insufficient to comply with the standards set forth in Article 3 of
the Convention. For over three years, during the night, the applicant was housed
in a dormitory with at least 135 other persons where he was afforded only 1.3 square metres
of personal space. Furthermore, in the Court’s view, the sanitary facilities available
were not sufficient to accommodate the needs of the detainees. There were only eight
to nine wash basins and two to three toilets available for at least 135 detainees.
Lastly, the Court observes that on seven occasions the applicant was transferred
to a disciplinary cell where he at times enjoyed more than 6 square metres of
personal space. However, given the infrequency and the brevity of such periods
of detention, the Court does not consider them to have alleviated the applicant’s
situation.
The Court takes cognisance of the fact that in the present case there is no indication that there was a
positive intention on the part of the authorities to humiliate or debase the applicant but
reiterates that, irrespective of the
reasons for the overcrowding, it is incumbent on the respondent Government to
organise their custodial system in such a way as to ensure respect for the
dignity of detainees, regardless of financial or logistical difficulties (see Mamedova
v. Russia, no. 7064/05, § 63, 1 June 2006, and Benediktov
v. Russia, no. 106/02, § 37,10 May 2007).
The Court has frequently found a violation of
Article 3 of the Convention on account of the lack of personal space afforded
to detainees (see, among other authorities, Kalashnikov
v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Khudoyorov
v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X; Mayzit
v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Novoselov
v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Labzov
v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Belevitskiy
v. Russia, no. 72967/01, §§ 75 et seq., 1 March 2007; and Ananyev
and Others, cited above, § 166).
Having regard to the material in its possession,
the Court notes that the Government have not put forward any fact or argument
capable of persuading it to reach a different conclusion in the present case.
There has therefore been a violation of Article
3 of the Convention on account of the conditions of the applicant’s detention
in remand prison no. IZ-66/1 from 27 May to 8 August 2006 and in
correctional facility no. IK-5 from 15 August 2006 to 19 August 2009
in Sverdlovsk Region, which it considers inhuman and degrading within the
meaning of this provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained about the
conditions of his detention in the temporary detention centre in Nizhniy Tagil
from 31 March to 20 May 2005, the alleged unfairness of the criminal
proceedings against him and the restrictions on visits made by his family and
lawyers in the remand prison as well as the alleged opening of his
correspondence by the administration of the correctional facility.
However, having regard to all the material in
its possession, and in so far the complaints fall within its competence, the
Court finds that there is no appearance of a violation of the rights and
freedoms set out in the Convention. It follows that this part of the
application must be rejected as manifestly ill-founded, pursuant to
Article 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 the applicant’s claims
in respect of non-pecuniary damage unsubstantiated and unreasonable. They
further submitted that, given that the applicant’s rights under the Convention
had not been infringed, his claims in respect of damage should be rejected in
full. In any event, the Government considered the applicant’s claims excessive.
The Court observes that the applicant spent more
than three years in custody in inhuman and degrading conditions. Making its
assessment on an equitable basis, it awards EUR 11,500 to the applicant,
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 in remand prison no. IZ-66/1 from 27
May to 8 August 2006 and in correctional facility no. IK-5 from
15 August 2006 to 19 August 2009 in Sverdlovsk Region admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the applicant’s
detention in remand prison no. IZ-66/1 from 27 May to 8 August 2006
and in correctional facility no. IK-5 from 15 August 2006 to
19 August 2009 in Sverdlovsk Region;
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 11,500
(eleven thousand five hundred euros), to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 27 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
