FIRST SECTION

CASE OF KURUSHIN v. RUSSIA

(Application no. 4963/06)

JUDGMENT

STRASBOURG

15 October 2015

This judgment is final but it may be subject to editorial revision.

In the case of Kurushin v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Julia Laffranque,
	Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 22 September 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 4963/06) 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 Yuriy Nikolayevich Kurushin (“the applicant”), on 8 December 2005.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3.  On 4 June 2013 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1967 and is detained in Smolensk.
5.  Between 25 July and 1 August 2005 the applicant was held in the IZ‑76/1 remand prison in Yaroslavl in connection with the criminal proceedings against him. According to the applicant, his cell measuring six square metres was equipped with four sleeping places and accommodated up to seven inmates. The applicant was allowed to take a one-hour daily walk in a recreation yard measuring eight square metres. According to the floor plans provided by the Government, the applicant’s cell measured 7.88 square metres and contained two sleeping places.
6.  After his conviction had become final, the applicant served his sentence in the IK-5 facility, a correctional colony located in the Smolensk Region. Between 9 and 20 January 2007 the applicant was held in disciplinary cell no. 4. He submitted that this cell measured twelve square metres and offered six sleeping places while actually accommodating up to thirteen inmates. During his detention in this cell, the applicant was taken, together with twenty-five other inmates, for a one-hour daily walk to an outside recreation area which measured twenty square metres. According to the documents provided by the Government, disciplinary cell no. 4 measured 15.4 square metres, contained eight sleeping places but accommodated only six inmates. The outside yard provided 4.8 square metres for each inmate.
THE LAW
Article II.	I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
7.  The Government submitted a unilateral declaration inviting the Court to strike the application out of its list of cases. They acknowledged that between 9 and 20 January 2007 the applicant had been detained in conditions which did not comply with the requirements of Article 3 of the Convention and offered to pay a sum of money.
8.  The applicant rejected the Government’s proposal. He disagreed, in particular, with the amount of the proposed compensation.
9.  Having studied the terms of the Government’s unilateral declaration, the Court observes that it did not cover the applicant’s detention in the remand prison. Without prejudging its decision on the admissibility and merits of the case, the Court considers that the declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Sorokin v. Russia, no. 67482/10, 10 October 2013).
10.  For the above reasons, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
11.  The applicant complained that the conditions of his detention in the IZ-76/1 remand prison and in disciplinary cell no. 4 of the IK-5 correctional facility had violated Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Admissibility
12.  The Court notes that this complaint 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.
Section 3.02	B.  Merits
13.  The Court observes at the outset that the factual submissions by the parties are contradictory and incomplete.
14.  As regards the conditions in the IZ-76/1 remand prison in Yaroslavl where the applicant had stayed from 25 July to 1 August 2005, the parties disagreed about the surface of the applicant’s cell and the number of sleeping places (six square metres and four places, according to the applicant, 7.88 square metres and two places, according to the Government’s floor plans). The Government did not comment on the applicant’s submissions regarding the number of inmates in his cell or in the exercise yard or the size of that yard. The Court therefore establishes the cell size to be 7.88 square metres, as listed in the original floor plan, and the cell population to be seven persons, as given by the applicant. Each detainee had slightly more than one square metre at his disposal. The Court will also accept the applicant’s account of the conditions in which outdoor exercise had taken place.
15.  Turning next to the description of the disciplinary cell located on the premises of the IK-5 correctional facility where the applicant had been held from 9 to 20 January 2007, the Court notes that the indications of the cell surface and population are in dispute between the parties. However, it does not need to resolve this controversy because, even accepting more generous figures given by the Government (15.4 square metres for six persons), the available personal space was still below three square metres per inmate.
16.  The Court further observes that although the applicant had begun serving his sentence in a correctional colony, the regime of his detention in the disciplinary cell was similar to that applicable in a remand prison. Thus, he was allowed only one hour of daily outdoor walk and was confined to his cell for the rest of the time. The same standards will therefore apply to both facilities.
17.  In previous cases where the applicants disposed of less than three square metres of personal space, the Court found that the overcrowding was severe enough to justify, in its own right, a finding of a violation of Article 3 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 145-148, 10 January 2012). As the applicant had at his disposal less than three square meters of floor surface during both periods of detention, the Court finds that the applicant suffered from severe overcrowding on both occasions (see paragraphs 5 and 6 above).
18. The applicant’s stay in both facilities was relatively short and the Court recently found no violation of Article 3 of the Convention on account of the brevity of the applicants’ stay in the cramped conditions (see Dmitriy Rozhin v. Russia, no. 4265/06, § 52, 23 October 2012, eleven days in a disciplinary cell with less than two square meters of personal space; and Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 138, 17 January 2012, nineteen days in a cell with two square meters of personal space).
19.  Nevertheless, the present case must be distinguished from the above‑cited case-law for the following reasons. The Court ought to take into account not just the situation of overcrowding inside the cell but the existence of any counterbalancing factors, such as for instance the possibility to take exercise outdoors (see Ananyev and Others, cited above, §§ 150‑152). As it transpired, the recreation yards in both facilities were hardly larger than the cells and were unlikely to afford any real possibility for exercise (see Moiseyev v. Russia, no. 62936/00, § 125, 9 October 2008). In fact, both yards were so small that the opportunity to take daily walks in such a restricted space only further exacerbated the overcrowding problem instead of compensating for the crammed conditions indoors.
20.  The cumulative effect of the above factors enables the Court to consider that the conditions of the applicant’s detention in both facilities amounted to inhuman and degrading treatment.
21.  There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention between 25 July and 1 August 2005 and between 9 and 20 January 2007.
Article IV.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
22.  As to the remainder of the application, the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
23.  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.”
Section 5.01	A.  Damage
24.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
25.  The Government considered that amount to be excessive.
26.  Having regard to its case-law in similar cases, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Section 5.02	B.  Costs and expenses
27.  The applicant did not claim any costs or expenses. Accordingly, there is no call to make an award under this head.
Section 5.03	C.  Default interest
28.  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.  Rejects the Government’s request to strike the application out of the Court’s list of cases;

2.  Declares the complaint regarding the conditions of the applicant’s detention admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President