FIRST SECTION
CASE OF
KLYUKIN v. RUSSIA
(Application no.
54996/07)
JUDGMENT
STRASBOURG
17 October 2013
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 Klyukin v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 24 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
54996/07) 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 Aleksandr Lemarkovich Klyukin
(“the applicant”), on 30 October 2007. The applicant complained about the
conditions of his detention in remand prison no. IZ-77/3 in Moscow and
correctional colony no. IK-5 in the Nizhniy Novgorod region. On
25 March 2008 he introduced similar complaints in respect of correctional
colony no. IK-16 in the Nizhniy Novgorod region. On 12 January 2011 the
applicant complained about the conditions of his detention in respect of his
detention in the correctional colonies from 16 April 2008 to
27 November 2009.
The applicant was represented by Ms M.
Samorodkina, 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 1 July 2010 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 1961 and lives in Moscow.
A. Criminal proceedings against the applicant
On 16 April 2006 the applicant was arrested
on suspicion of having committed a burglary together with K., his underage son,
and S., also a minor. His flat was searched. He was brought to a temporary
detention centre, where he was held until 18 or 19 April 2006 (the parties
disputed the relevant date). He received very little food and water and did not
have access to medical assistance. During that period he was questioned on
several occasions in the absence of a lawyer and beaten up by police officers,
who wanted him to confess. According to the applicant, his lawyer’s signature
was later added to the transcript of his questioning.
On 18 April 2006 the Moscow Tushinskiy
District Court authorised the applicant’s pre-trial detention. In particular,
the court noted as follows:
“Pursuant to the materials submitted, [the applicant] is
charged with criminal offences entailing a custodial sentence exceeding five
years, he is not officially employed and, if released, might abscond.
Furthermore, the court discerns no grounds rendering possible the imposition of
a less strict restrictive measure.”
The applicant remained in custody pending
investigation and trial. The District Court extended his detention on
14 June and 29 November 2006 and 27 February 2007. The applicant
did not appeal against those decisions.
On 14 June 2006 the District Court opened
the trial. The applicant was represented by State-appointed counsel.
On 12 March 2007 the District Court found
the applicant guilty as charged and sentenced him to five-and-a-half years’
imprisonment. On 14 May 2007 the Moscow City Court upheld the applicant’s
conviction on appeal.
B. Conditions of the applicant’s detention
1. Remand prison no. IZ-77/3 in Moscow
From 18 or 19 April 2006 to 13 June
2007, the applicant was detained at remand prison no. IZ-77/3 in Moscow.
(a) The description provided by the Government
The Government’s submissions as regards the
conditions of the applicant’s detention in remand prison no. IZ-77/3 can
be summarised as follows:
|
Period of detention
|
Cell no.
|
Cell surface area (square metres)
|
Number of beds
|
Number of inmates
|
|
From 19 April 2006 to
17 February 2007
|
|
4
|
|
|
|
From 17 February to
16 March 2007
|
|
4
|
|
|
|
From 16 March to 11 April
2007
|
|
3
|
|
-6
|
|
From 11 to 25 April 2007
|
|
4
|
|
|
|
From 16 May to 13 June 2007
|
|
4
|
|
-12
|
All the cells were equipped with a ventilation
system ensuring adequate fresh air circulation. Each cell had two windows
measuring 0.89 x 0.94 metres covered with metal grilles that had 50 x 50 millimetres
openings. The grilles installed did not prevent access to natural light. The
windows had small vents which could also be kept open to ensure access to fresh
air. The electric lighting was constantly on. From 6 a.m. to 10 p.m. four
40-watt electric bulbs were used. For the rest of the time two 40-watt electric
bulbs were used.
The toilet in each cell was separated from the
living area by a 1.7-metre high brick wall and a door. The distance
between the toilet and the dining table was 2 metres. There was a sink with hot
and cold running tap water.
The inmates were allowed at least an hour’s
daily outdoor exercise in designated exercise areas measuring 33 square metres
on average. The exercise areas were covered with steel mesh, with openings
measuring 20 x 20 centimetres. The mesh did not prevent access to natural light
or fresh air.
(b) The applicant’s submissions
The applicant accepted the Government’s
submissions in part concerning cell measurements and the number of sleeping
places. He challenged the data submitted by the Government as regards cell
population. According to the applicant, at all times the cells were severely
overcrowded. The number of inmates was two to three times as high as the cells’
design capacity. The number of sleeping places was insufficient and the inmates
had to take turns to sleep. In particular, in cells nos. 401 and 411 there
were from 30 to 50 inmates detained together with the applicant; cell
no. 704 housed from 5 to 20 inmates. The applicant did not contest the
information submitted by the Government in respect of the number of inmates
detained in cell no. 309.
There was no ventilation system in any of the
cells. The electric lighting was insufficient. The glass panes were missing
from the windows and it was extremely cold in the winter and extremely hot in
the summer. The windows were covered with several layers of metal grilles and
bars which prevented access to natural light. Nor was there running hot water.
The applicant was allowed outdoor daily exercise
in the specially designated areas only during the period of his detention in
cell no. 309, in other words from 16 May to 13 June 2007. For
the rest of the time he was taken outdoors to a semi-circular area measuring
from 20 to 25 square metres. However, in view of the large number of inmates
brought to that area, it was impossible to exercise or walk around. The
applicant did not have winter clothes and was not allowed to exercise outdoors
during the winter.
In cells nos. 401 and 411 the toilet was not
separated from the living area of the cell. The cells were infested with lice,
bed bugs and other insects. The toilet was foul smelling. No bed linen was
provided. The only mattresses provided were dirty, covered with blood stains
and infested with lice. Sometimes detainees suffering from tuberculosis,
hepatitis and AIDS were placed in the cell. The food was of a very low quality.
The library was closed. Nor were the inmates provided with board games.
From 24 April to 16 May 2007 the
applicant was admitted to the hospital at remand prison no. IZ-77/1 in Moscow. He claimed that he did not receive proper medical assistance there.
2. Conditions of the applicant’s detention after
conviction
The time frame of the
applicant’s detention in correctional colonies nos. IK-5 and IK-16 in the
Nizhniy Novgorod region where the applicant served a prison sentence can be presented
as follows:
|
Period
|
Detention
facility
|
|
From 27 June to 5 September
2007
|
Correctional colony no. IK-16,
block 2
|
|
From 5 September to
7 November 2007
|
Hospital at correctional colony
no. IK-5
|
|
From 7 November 2007 to 16 April
2008
|
Correctional colony no. IK-16,
block 2
|
|
From 16 April to 2 July 2008
|
Hospital at correctional colony
no. IK-5
|
|
From 2 July 2008 to
27 November 2009
|
Correctional colony no. IK-16,
block 1
|
(a) Correctional colony no. IK-5 in the Nizhniy
Novgorod region
(i) The description provided by the Government
According to the Government, from 5 to
9 September 2007 the applicant was held in the colony’s hospital, in ward no. 2
measuring 23.3 square metres and equipped with eight beds. From
10 September to 7 November 2007 and from 16 April 2008 to
2 July 2008 the applicant was held in ward no. 3 measuring 23.3
square metres and equipped with ten beds. The Government did not specify the number
of inmates detained there. The wards were equipped with a ventilation system.
The windows in the wards ensured adequate access to daylight. They were not
covered with grilles or shutters. The electric lighting was adequate. The
bathroom was located outside the ward. Both the hospital and the transit area
of the correctional colony had outdoor exercise areas.
(ii) The description provided by the applicant
According to the applicant, upon arrival to the
hospital on 5 September 2007, he was placed in disciplinary cell
no. 2 measuring 20 sq. m. since there were no beds available in
ordinary wards. The toilet was located some 1 metre away from the dining table.
He was transferred to hospital ward no. 3 only on 10 September 2007.
Disciplinary cell no. 2 was infested with
insects and rats. The walls were dirty. The windows there were covered with
metal grilles. The mattresses were dirty and covered with blood. No bedding was
provided. It was impossible to sleep in those beds because of metal springs sticking
out. The lighting there was insufficient. Ward no. 3 was much cleaner than
the disciplinary cell. There were no metal grilles on the windows. The lighting
was sufficient.
The applicant was provided with an individual bed
at all times. The food was scarce and of a very low quality. During the night
the applicant was unable to sleep because of hunger. He spent nights in the
bathroom reading the bible. The bathroom was in a satisfactory condition. The
number of inmates detained together with the applicant sometimes was twice as
high as the number indicated by the Government. The applicant was not allowed
any outdoor exercise.
(b) Correctional colony no. IK-16 in the Nizhniy
Novgorod region
(i) The description provided by the Government
Without indicating specific
time periods, the Government submitted the following information as regards the
number of inmates detained together with the applicant in correctional colony
no. IK-16 in the Nizhniy Novgorod region:
|
Dormitory
|
Surface
area of the dormitory where the applicant was placed (square metres)
|
Number
of inmates/sleeping places in the dormitory where the applicant was placed
|
Number
of inmates/sleeping places per block
|
Number
of toilet cabins
|
Number
of wash sinks
|
Exercise
area (square metres)
|
|
Block 2
|
|
|
|
|
|
|
|
Block 1
|
|
|
|
|
|
|
The living premises in the colony were equipped
with a ventilation system. The inmates could also open vents in the windows to
ensure access to fresh air. The windows were not covered with metal bars or grilles.
The electric lighting in the dormitories was sufficient. The sanitary area in
each unit was equipped with five toilets separated by one-metre high
non-transparent screens.
The inmates were able to partake in outdoor
exercise in areas adjacent to blocks 1 and 2 measuring 70 and 274 square metres
respectively.
(ii) The description provided by the applicant
The applicant did not
challenge the veracity of the Government’s submissions concerning the surface
area of the dormitories in correctional colony no. IK-16 at the time of
his detention there. He claimed, however, that the number of inmates assigned
with him to the dormitories was much higher than the figures provided by the
Government. According to the applicant, the beds in the dormitories were
arranged in three-tier bunks offering very little personal space to the
inmates. His bed was located near the window and he could read easily during
the day time. In the evening, however, the electric light was insufficient for
reading. The hygienic conditions of the dormitories were also poor due to the large
number of detainees assigned to them. The dormitories were equipped with a
ventilation system. The windows were not covered with metal grilles. The
bathrooms located were in satisfactory conditions. The applicant had sufficient
opportunity for an outdoor exercise.
C. The applicant’s release
On 30 November 2009 the Lyskovo District
Court in the Nizhniy Novgorod Region released the applicant on parole. The
court noted, inter alia, that the applicant demonstrated his remorse for
the crimes he had committed and regretted them.
The applicant appealed, claiming that he had
never admitted that he had actually committed the crimes he had been convicted
of and that the District Court had erred in stating the contrary in the
decision of 30 November 2009.
The parties did not inform the Court of the
outcome of the appeal proceedings.
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 hygiene requirements.
They should be provided with an individual 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. Moreover, detainees should be
given, free of charge, sufficient food for the maintenance of good health in
line with the standards established by the Government of the Russian Federation
(section 22 of the Act).
. Article 99 of the Russian Code on the Execution of
Criminal Sentences of 8 January 1997, as amended, provides that the personal
space allocated to each individual in a dormitory should be no less than two
square metres. Inmates are to be provided with individual sleeping places, bed
sheets, toiletries and seasonal clothes.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained about the conditions of
his pre-trial detention from 18 (in the Government’s submission, 19) April 2006
to 13 June 2007 at remand prison no. IZ-77/3 in Moscow; and during
multiple periods between 27 June 2007 and 27 November 2009 in
correctional colonies nos. IK-16 and IK-5 in the Nizhniy Novgorod region.
He also complained of the lack of an effective domestic remedy in this respect.
The Court will examine the complaints under Articles 3 and 13 of the
Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
failed to exhaust available domestic remedies. In particular, he had not
brought a civil action seeking damages for the allegedly appalling conditions
of his detention. Alternatively, he could have brought his complaints to the
attention of a prosecutor.
The applicant asserted that he had lodged
numerous complaints about the conditions of his detention before domestic
prosecutors. All of them had been to no avail. Nor would a civil action for
damages have been an effective remedy in respect of the alleged violation of
Article 3 of the Convention.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
. As regards the Government’s objection that the
applicant failed to exhaust effective domestic remedies in respect of his
complaint about the conditions of his detention, the Court reiterates that in the case of Ananyev and
Others v. Russia (nos. 42525/07 and 60800/08, §§ 93-119, 10 January 2012)
the Court carried out a thorough analysis of domestic remedies in the Russian
legal system in respect of a complaint relating to the material conditions of
detention in a remand prison. The Court concluded in that case that it was not
shown that the Russian legal system offered an effective remedy that could be
used to prevent the alleged violation or its continuation and provide the
applicant with adequate and sufficient redress in connection with a complaint
of inadequate conditions of detention. Accordingly, the Court dismissed the
Government’s objection as to the non-exhaustion
of domestic remedies and found that the applicants did not have at their
disposal an effective domestic remedy for their grievances, in breach of
Article 13 of the Convention.
The Court further observes that in an earlier
case of Kulikov (see Kulikov v. Russia,
no. 48562/06, § 31, 27 November 2012), it
dismissed the Government’s objection as to the alleged non-exhaustion of
domestic remedies by the applicant. The Court noted in Kulikov that the
Government had failed to demonstrate the practical effectiveness of the
applicant’s recourse to the domestic authorities in respect of his complaints
about the conditions of his detention in a correctional colony.
. Having examined the Government’s arguments, the
Court finds no reason to depart from that conclusion in the present case.
Accordingly, the Court rejects the Government’s argument as to the exhaustion
of domestic remedies.
(b) Compliance with six-month rule
. In the light of the Court’s finding
(see paragraphs 38-40 above) that the Russian legal system offers no effective remedy
providing adequate redress, the Court considers that the six months’ period
should start running from the end of the situation complained of.
(i) Severability of the applicant’s complaints
. The
Court notes from the outset that the applicant’s complaints concern the
conditions of his detention in two different types of detention facility,
notably in remand prison no. IZ-77/3 in Moscow and correctional colonies
nos. IK-5 and IK-16 in the Nizhniy Novgorod region. He was detained in the
remand prison pending investigation and trial. Once his conviction became
final, the applicant was sent to serve a prison sentence in correctional colony
no. IK-16. His detention there was not, however, continuous and comprised
three distinct periods punctuated by his two transfers to correctional colony
no. IK-5 where he underwent medical treatment (see paragraph 21 above). Accordingly, the Court’s task in the present case is
to ascertain whether the applicant’s detention constituted a “continuing
situation” or, if not, to decide on the admissibility of the applicant’s
complaint in respect of each period of the applicant’s detention.
In this connection, the Court observes that
detention facilities of different types have different purposes and vary in the
material conditions they offer (see, mutatis mutandis, Fetisov
and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08,
31242/08 and 52133/08, § 76, 17 January
2012). Such a difference in material conditions creates the presumption
that detention in detention facilities of different types does not constitute a
continuing situation and the applicant is expected to submit a separate
complaint in respect of the conditions of his or her detention in each
detention facility.
. The Court further observes that a significant change in the detention regime,
even where it occurs within the same facility, has been held by the Court to
put an end to the “continuing situation” as described above (see Fetisov,
cited, above, §§ 77-78).
. Regard being had to the above, the
Court finds firstly, that the applicant’s detention in remand prison
no. IZ-77/3 in Moscow and his detention in correctional colonies
nos. IK-5 and IK-16 in the Nizhniy Novgorod region do not constitute a
“continuing situation”.
. As regards the applicant’s detention
in the correctional colonies, the Court notes as follows. During the first two
periods of the applicant’s detention in correctional colony no. IK-16, the
applicant was assigned to a dormitory in block 2. The applicant’s
placement in a hospital in between those two periods, being of a temporary
nature, does not prevent the Court from treating his detention during those two
periods as a “continuing situation”. However, upon return to correctional
colony no. IK-16 after the second admission to hospital, the applicant was
assigned to block 1 where the conditions of his detention (number of inmates
assigned to the dormitory, size of the dormitory and exercise area, capacity of
sanitary facilities, etc.) different significantly from those in block 2 (see
paragraphs 26-29 above). Accordingly, the third period of the applicant’s
detention should be considered separately.
Lastly, the Court notes that the two periods of
detention of the applicant’s in correctional colony no. IK-5 where he
underwent medical treatment, as noted above, being of a temporary nature, did
not constitute a continuing situation and the Court will examine them
separately.
Accordingly, the Court will examine separately
whether the applicant complied with the six-month rule in respect of each of
the following periods:
|
Period
|
Detention
facility
|
|
From 27 June 2007 to
16 April 2008
|
Correctional colony no. IK-16,
block 2
|
|
From 5 September to 7 November
2007
|
Hospital at correctional colony
no. IK-5
|
|
From 16 April to 2 July 2008
|
Hospital at correctional colony
no. IK-5
|
|
From 2 July 2008 to
27 November 2009
|
Correctional colony no. IK-16,
block 1
|
(ii) Detention in remand prison no. IZ-77/3 in Moscow
from 18 or 19 April 2006 to 13 June 2007
. The applicant was required to
introduce the complaint in respect of the conditions of his detention in remand
prison no. IZ-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007 no
later than 13 December 2007. The Court finds, accordingly, that by lodging
the complaint on 30 October 2007 the applicant complied with the six-month
rule in respect of this part of the application.
(iii) Detention in correctional colony no. IK-16
in the Nizhniy Novgorod region
The Court considers that, by introducing the
complaint on 25 March 2008 in respect of the detention in correctional
colony no. IK-16 in the Nizhniy Novgorod region between 27June 2007
and 16 April 2008 and on 30 October 2007 in respect of the detention
in correctional colony no. IK-5 in the Nizhniy Novgorod region from
5 September to 7 November 2007, the applicant complied with the
six-month rule. However, as regards the applicant’s detention in the same
colonies during the period between 16 April 2008 and 27 November
2009, the applicant lodged the relevant complaints only 12 January 2011, that
is more a year after his detention ended. It follows that his part of the
applicant has been introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
(iv) Conclusion
. The
Court notes that the complaints about conditions of the applicant’s detention in
remand prison no. IZ-77/3 in Moscow from 18 (or 19) April
2006 to 13 June 2007, in correctional colony no. IK-16 in the Nizhniy
Novgorod region between 27 June 2007 and 16 April 2008 and in
correctional colony no. IK-5 in the Nizhniy Novgorod region from 5 September
to 7 November 2007 are not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. Article 3 of the Convention
(a) The parties’ submissions
The Government submitted that the conditions of
the applicant’s detention in the remand prison had been compatible with the
standards set forth in domestic legislation and the requirements of Article 3
of the Convention. They relied on excerpts (22 in total) from the remand prison
population register which recorded, for each day, the
number of sleeping places and the number of inmates in each cell, the total
number of inmates in each of the seven wings of the remand prison and the total
number of inmates in the entire remand prison, and on certificates
prepared by the administration of the remand prison concerning its population
in August 2010. As for the conditions of the applicant’s detention in the
correctional colonies, the Government submitted statements prepared by the
colonies’ administration.
The applicant challenged the veracity of the
data submitted by the Government in respect of the remand prison population. In
particular, he pointed out that the figures concerning the remand prison population
contained visible corrections. In any event, he asserted that, if the
Government’s allegations were accepted as credible, the personal space afforded
to him during the periods of his detention in cells nos. 401 and 411 had
been below three square metres, which fact alone had been found by the Court on
many occasions as sufficient to find a violation of Article 3 of the
Convention. As regards the correctional colonies, the applicant conceded that
the conditions of his detention there had been better than the conditions of
detention in the remand prison. Nevertheless, in view of insufficient personal
space afforded to him and the scarcity and low quality of food there, he considered
that those conditions had been incompatible with the standards set out in
Article 3 of the Convention.
(b) The Court’s assessment
For an overview of the
general principles, see the Court’s judgment in the case of Ananyev and Others (cited above, §§ 139-159).
(i) Conditions of detention in the remand prison
. The
Court observes that the parties have disputed certain aspects of the conditions
of the applicant’s detention in remand prison no. IZ-77/3 in Moscow. However,
there is no need for the Court to establish the veracity of each and every
allegation. The focal issue for the Court in the present case is the personal
space afforded to the applicant during his detention at the remand prison.
. The
Court reiterates that Convention proceedings, such as the present application,
do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because
in certain instances the respondent Government alone have access to information
capable of corroborating or refuting the allegations made. A failure on a
Government’s part to submit such information without a satisfactory explanation
may give rise to the drawing of inferences as to the validity of the applicant’s
allegations (see, among other authorities, Ahmet
Özkan and Others v. Turkey, no. 21689/93,
§ 426, 6 April 2004).
. In
support of their submissions as to the cell population and the availability of
an individual sleeping place, the Government produced certificates issued by
the administration of the remand prison in August 2010 and selected pages from
the prison population register which recorded, for each day, the number of
sleeping places and the number of inmates in each cell, the total number of
inmates in each of the seven wings of the remand prison and the total number of
inmates in the entire remand prison.
. The
certificates from the prison governor were issued in August 2010, long after
the applicant had left the remand prison. The Court has repeatedly declined to
accept the validity of similar certificates on the grounds that they could not
be viewed as sufficiently reliable, given the lapse of time involved and the
absence of any supporting documentary evidence (see, among other numerous
authorities, Idalov v. Russia [GC], no. 5826/03, §§ 99-100, 22 May 2012). The
certificates are therefore of little evidentiary value for the Court.
. Turning
next to the copies of the prison population register produced by the
Government, the Court notes, firstly, that the Government preferred to submit
the copies of certain pages only, covering twenty-two days out of almost a year
and four months that the applicant spent in the remand prison. It finds such
incomplete and selective evidence unconvincing (see, for similar reasoning, Sudarkov
v. Russia, no. 3130/03, § 43, 10 July
2008, and Kokoshkina v. Russia, no. 2052/08, § 60, 28 May 2009). It further observes that on all the pages containing data in
respect of the population of cells nos. 401 and 411 the entries showing
the number of sleeping places and the number of inmates were visibly altered,
with a figure having been erased and another figure having been written over
instead. It is significant that on each page only the entries concerning the
applicant’s cells were corrected, the entries in respect of the other cells remaining
intact. The entries recording the total number of inmates in the applicant’s
wing and the total number of inmates in the entire remand prison were also erased
and changed. The Government did not indicate at what point and for what purpose
the information in the register had been modified in such a way. The Court notes
in this connection that it has already found that alterations in a prison
population register, without any explanations as to their origin, reason and
timing, made the information contained in it unreliable (see Glotov v. Russia, no. 41558/05,
§ 25, 10 May 2012).
. Having
regard to the above considerations, the Court considers that the Government
have not substantiated their argument that the number of inmates in the
applicant’s cells did not exceed the capacity they were designed for. Accordingly, the Court accepts the
applicant’s submissions that the cells in remand prison no. IZ-77/3 in Moscow
where he was detained were overcrowded.
. The
Court has frequently found a violation of Article 3 of the Convention on
account of a lack of personal space afforded to detainees (see, among the
leading authorities, Ananyev, cited above, § 166).
. Having
regard to its case-law on the subject and the materials submitted by the
parties, the Court reaches the same conclusion in the present case. The fact that
the applicant was obliged to live, sleep and use the toilet in the same cell
with so many other inmates was itself sufficient to cause distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent in
detention, and arouse in him feelings of anguish and inferiority capable of
humiliating and debasing him.
. 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-77/3 in Moscow from 18 or 19 April 2006 to 13 June 2007,
which amounted to inhuman and degrading treatment within the meaning of that
provision.
(ii) Conditions of detention in the correctional
colonies
(α) Detention in correctional colony
no. IK-16 in the Nizhniy Novgorod region between 27 June 2007 and
16 April 2008
. The
Court notes that the applicant challenged the information submitted by the
Government as regards the personal space afforded to him in a dormitory during
his detention in correctional colony no. IK-16 in the Nizhniy Novgorod
region between 27 June 2007 and 16 April 2008. 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 of
the Convention, even on the assumption that the information provided by the
Government is correct.
. The
Court notes that, according to the Government, during the periods in question
the applicant shared a dormitory measuring 196 square metres with 120 other
persons. The personal space afforded to him amounted, accordingly, to 1.63
square metres. The Court does not lose sight of the fact that this figure is
below the domestic statutory standard of 2 square metres for male convicts
in correctional colonies (see paragraph 34 above). It also reiterates that
this figure must be viewed in the context of the wide freedom of movement
enjoyed by the applicant from the wake-up call in the morning to lights out at
night, when he would have been able to move about a substantial part of the
correctional colony, including the rest of the prison block and adjacent
grounds of 274 square metres (compare
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 seven and a half
months, during the night, the applicant was housed in a dormitory with at least
120 other persons where he was afforded only 1.63 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 ten
wash basins and five toilets available for approximately 180 detainees living
in the same block as the applicant (see paragraphs 21 and 26 above).
. There
has therefore been a violation of Article 3 of the Convention on account of the
conditions of the applicant’s detention in correctional colony no. IK-16
in the Nizhniy Novgorod region between 27 June 2007 and 16 April 2008, which it
considers inhuman and degrading within the meaning of this provision.
(β) Detention in a hospital at correctional
colony no. IK-5 in the Nizhniy Novgorod region from 5 September to 7 November
2007
. The
Court observes that the applicant spent two months in a hospital at
correctional colony no. IK-5 where, according to him, he had no
opportunity for outdoor exercise and the food was scant and of poor quality. He
also challenged the information provided by the Government as regards the
personal space afforded to him and claimed that on certain occasions he had
been afforded no more than 0.1 square metres.
. The
Court further notes that the Government’s submissions were based on the
statements made by the administration of the correctional colony prepared in
2010, that is almost three years after the applicant’s detention there. In this
respect, the Court reiterates that it attaches little evidential value to such
documents and cannot view them as sufficiently reliable (see, for example, Idalov,
cited above, §§ 99-100).
. Nevertheless, taking into account
the cumulative effect of the conditions of the applicant’s detention and, in
particular, the time-period during which he was detained in a hospital at correctional
colony no. IK-5, the privacy he was afforded as regards the use of
sanitary facilities and the fact that he could move freely within the hospital,
the Court does not consider that the conditions of the applicant’s detention,
although far from adequate, reached the threshold of severity required to
characterise the treatment as inhuman or degrading within the meaning of
Article 3 of the Convention (compare, Fetisov, cited above, § 138). Therefore, there has been no violation
of this provision.
(iii) Summary of
the Court’s conclusions
Regard being had to the above findings, the
Court considers that (1) 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-77/3 in Moscow from 18 or 19 April 2006 to
13 June 2007 and in correctional colony no. IK-16 in the Nizhniy
Novgorod Region between 27 June 2007 and 16 April 2008; and (2) there has been
no violation of the said provision on account of the conditions of the
applicant’s detention in a hospital at correctional colony no. IK-5 in the
Nizhniy Novgorod Region from 5 September to 7 November 2007.
2. Article 13 of the Convention
. The
Court takes note of its earlier findings (see paragraphs 38 and 40
above), and concludes that there has been a violation of Article 13 of the
Convention on account of the lack of an effective remedy under domestic law
enabling the applicant to complain about the conditions of his detention in
remand prison no. IZ-77/3 in Moscow and correctional colony no. IK-16 in
the Nizhniy Novgorod Region.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained of ill-treatment
in police custody, the unlawfulness and the length of his pre-trial detention,
a search in his flat, the unfairness and the length of the criminal proceedings
against him, and about the court’s reasoning underlying his release on parole
and the destruction of one his letters addressed to the Court by an inmate.
Having regard to all the
material in its possession and in so far as it falls within its competence, the
Court finds that the evidence before it discloses no 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 being manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) 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 claim
excessive.
The Court observes that for over two years the
applicant was detained in appalling conditions in contravention of
Articles 3 and 13 of the Convention. The Court considers that the
applicant’s suffering and frustration cannot be compensated for by a mere
finding of a violation. However, the Court accepts the
Government’s argument that the particular amount claimed appears excessive.
Making its assessment on an equitable basis, it awards the
applicant EUR 6,000, plus any tax that may be chargeable, in respect of
non-pecuniary damage.
B. Costs and expenses
. The
applicant did not submit any claims for costs and expenses. Accordingly, the
Court makes no 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 complaints concerning the
conditions of the applicant’s detention in remand prison no. IZ-77/3 in
Moscow from 18 (or 19) April 2006 to 13 June 2007, in correctional colony
no. IK-16 in the Nizhniy Novgorod Region between 27 June 2007 and
16 April 2008 and in a hospital at correctional colony no. IK-5 in
the Nizhniy Novgorod region from 5 September to 7 November 2007 and
the lack of an effective remedy in this respect 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-77/3 in
Moscow from 18 (or 19) April 2006 to 13 June 2007 and
correctional colony no. IK-16 in the Nizhniy Novgorod Region between
27 June 2007 and 16 April 2008;
3. Holds that there has been no violation of
Article 3 of the Convention on account of the conditions of the applicant’s
detention in a hospital at correctional colony no. IK-5 in the Nizhniy
Novgorod region from 5 September to 7 November 2007;
4. Holds that there has been a violation of
Article 13 of the Convention;
5. 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 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the
respondent State 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre Deputy Registrar President
