BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST SECTION
CASE OF VLADIMIR SOKOLOV v. RUSSIA
(Application no. 31242/05)
JUDGMENT
STRASBOURG
29 March 2011
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 Vladimir Sokolov v.
Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer
Lorenzen,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren
Nielsen, Section
Registrar,
Having deliberated in private on 8 March 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 31242/05)
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
Vladimir Vladimirovich Sokolov (“the applicant”), on 30
July 2005.
- The applicant, who had been granted legal aid, was
represented by Mrs K. Moskalenko and Mrs O. Preobrazhenskaya, lawyers
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, former 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 Nizhniy Novgorod remand prison
IZ-52/1 and Moscow remand prison IZ-77/3 and had not received
appropriate medical assistance during his detention in those prisons.
He also alleged that Russian authorities had put pressure on
him in connection with his
application to the Court.
- On 14 December 2005 the President of the First Section
decided to grant priority treatment to the application under Rule 41
of the Rules of the Court.
- On 7 March 2006 the President of the First Section
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 1).
- The Government objected to the joint examination of the
admissibility and merits of the case. The Court examined their
objection and dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1970 and lived, before his
arrest, in Nizhniy Novgorod. He is currently serving a prison
sentence in Nizhniy Novgorod.
A. Criminal proceedings against the applicant
8. On
27 June 2003 police arrested the applicant on suspicion of several
murders and other serious crimes. The applicant alleged that
policemen had refused to get him a lawyer and had beaten him to make
him sign an acknowledgment of guilt. The applicant remained in
detention pending the investigation and trial.
- On 2 March 2004 the regional prosecutor's office
charged the applicant with planning several murders and the unlawful
acquisition and possession of firearms.
- The applicant alleged that during the pre-trial
proceedings he had been transferred on several occasions from the
Nizhniy Novgorod remand prison to different police stations in
Nizhniy Novgorod and was kept there for several days under the
pretext of investigative activities. On 29 March 2004 the regional
prosecutor replied to the applicant's complaint in this connection
that he had been transferred to police stations on the lawful orders
of the investigator in charge of his case to take part in
investigative activities. The prosecutor further stated that his
reply could be appealed against to a higher prosecutor or to a court.
It appears that the applicant did not lodge any appeal before those
authorities.
- By a final decision of 27 April 2004 the Nizhniy
Novgorod Regional Court (“the Regional Court”) dismissed
the applicant's complaint against the prosecutor's refusal to
initiate criminal proceedings against police officers who had
allegedly beaten the applicant.
- On 14 October 2004 the Regional Court convicted the
applicant, along with seven co-defendants, as charged and sentenced
him to nineteen years' imprisonment. The court
held that the applicant's guilt in the impugned crimes had been
proven by an extensive body of evidence examined during the trial,
such as statements by the applicant's co-defendants and witnesses,
expert examinations and other evidence. The court also observed that
the applicant's allegations of ill-treatment by police to make him
sign a confession had already been investigated by the prosecutor's
office, which had refused to initiate criminal proceedings in this
respect. The court also noted that the applicant's confessions could
not be regarded as an acknowledgment of guilt since they had been
made after he had been arrested on suspicion of the impugned crimes.
- On 29 April 2005 the Supreme Court of the Russian
Federation upheld the applicant's conviction on appeal.
B. Conditions of the applicant's detention
- During
the criminal proceedings against him the applicant was detained in
Nizhniy Novgorod remand prison IZ-52/1 (“remand prison
no. 52/1”) and Moscow remand prison IZ-77/3 (“remand
prison no. 77/3”). The parties agreed on the following timeline
of the applicant's detention in those prisons:
- between
8 July 2003 and 12 January 2005 the applicant was detained in remand
prison no. 52/1
- between
13 January and 5 December 2005 he was detained in remand prison no.
77/3
- between
6 December 2005 and 14 February 2006 the applicant was again detained
in remand prison no. 52/1.
- On
14 February 2006 the applicant was transferred to serve his prison
sentence at a correctional colony in the Nizhniy Novgorod Region.
1. Detention in remand prison no. 52/1
(a) The applicant's account
- The applicant was detained in different cells. All of
them were overcrowded. Most of the time (between November 2003 and 12
January 2005 and between 6 December 2005 and 14 February 2006) the
applicant was detained in cell no. 8/59, which measured approximately
49 square metres, had 32 beds and accommodated between 70 and 100
detainees. Two beds were used to store kitchenware and food. The
applicant did not have an individual sleeping place. The cell was
equipped with one toilet and washstand. The inmates were allowed one
hour's exercise per day. The applicant was dissatisfied with many
other aspects of his detention, such as a lack of bedding, natural
light and ventilation, poor state of the drainage and water supply,
and the presence of insects in the cells.
(b) The Government's account
- The Government provided the following information on
the cells in which the applicant was detained. They underlined that
the number of detainees indicated by them corresponded to an average
number of inmates per cell detained together with the applicant.
(i) Detention between 8 July 2003 and 12
January 2005
|
Cell
number
|
Dates of the applicant's stay
|
Surface,
square metres
|
Number
of beds
|
Number
of detainees
|
|
15/158
|
8 to 9 July 2003
|
-
|
-
|
-
|
|
21/256
|
9 to 24 July 2003
|
7.8
|
4
|
3
|
|
21/252
|
24 to 31 July 2003
|
7.3
|
4
|
3
|
|
21/250
|
31 July to
15 August 2003
|
7.1
|
4
|
4
|
|
15/163
|
15 August to
29 September 2003
|
8.5
|
4
|
5
|
|
25/299
Prison hospital
|
29 September to
21 October 2003
|
17.4
|
10
|
13
|
|
15/163
|
21 to 30 October 2003
|
8.5
|
4
|
5
|
|
8/61
|
30 October to
4 November 2003
|
39
|
22
|
30
|
|
15/163
|
4 November 2003
to 2 December 2003
|
8.5
|
4
|
6
|
|
8/59
|
2 December 2003
to 13 August 2004
|
56.2 or 57.9
|
32
|
46
|
|
6/47
|
13 to 16 August 2004
|
15.8
|
8
|
8
|
|
8/59
|
16 August to
23 December 2004
|
57.9
|
32
|
42
|
|
25/295
Prison hospital
|
23 to 31 December 2004
|
33
|
10
|
12
|
|
8/59
|
31 December 2004 to 12 January 2005
|
56.2 or 57.9
|
32
|
44
|
(ii) Detention between 6 December 2005 and
14 February 2006
|
Cell
number
|
Dates of the applicant's stay
|
Surface,
square metres
|
Number
of beds
|
Number
of detainees
|
|
8/59
|
6 to 12 December 2005
|
56.2 or 57.9
|
32
|
42
|
|
25/295
Prison
hospital
|
12 to 28 December 2005
|
33
|
10
|
7
|
|
8/59
|
28 December 2005 to 24 January 2006
|
56.2 or 57.9
|
32
|
41-60
|
|
25/295
Prison hospital
|
24 January to
2 February 2006
|
33
|
10
|
7
|
|
8/59
|
2 to 14 February 2006
|
56.2 or 57.9
|
32
|
Up to 60
|
- The Government further provided a report by the prison
department of the Nizhniy Novgorod Region of 21 April 2006 (“prison
department”) on the investigation carried out into the
complaints about conditions of detention raised by the applicant
before the Court. The Government submitted that it could be seen from
that document that other aspects of the applicant's detention fully
complied with the requirements of the Convention. The applicant had
been provided with an individual sleeping place and bedding. All
cells in the remand prison had windows which let in sufficient fresh
air and daylight. The applicant had been able to read and work by
natural light. All cells were equipped with the mandatory ventilation
system. The applicant had been allowed one hour's exercise per day.
He had been provided with drinking water. The cells were not overrun
with insects or rodents.
2. Detention in remand prison no. 77/3
(a) The applicant's account
- During
the first week the applicant was kept in cell no. 604 and then he was
placed in cell no. 603 which measured approximately 32 square metres
and accommodated between 30 and 37 detainees. He stayed in that cell
until December 2005. The cell was equipped with bunk beds on which 16
detainees could sleep in summer time and 13 in winter time. The
applicant did not have an individual sleeping place. He was provided
with very old and dirty bedding. The cells were full of insects.
Detainees had to sleep close to each other and very often they
contaminated each other with different diseases. All cells were
equipped with only one toilet and washstand. The inmates were allowed
one hour's exercise per day. The applicant was dissatisfied with many
other aspects of his detention such as a lack of natural light and
ventilation, and the poor quality of the water and electricity
supply.
(b) The Government's account
- The Government provided the following information on
the cells in which the applicant was detained.
|
Cell
number
|
Dates of the applicant's stay
|
Surface,
square metres
|
Number
of beds
|
Number of detainees
|
|
403
|
13 January 2005 (2-3 hours)
|
11.7
|
8
|
3-15
|
|
604
|
13 to 21 January 2005
|
32.7
|
32
|
21-26
|
|
603
|
21 January to
5 December 2005
|
26
|
18
|
15-30
|
- The Government submitted that the other aspects of the
applicant's detention had fully complied with the requirements of the
Convention. The applicant had been provided with an individual
sleeping place, bedding and kitchenware. He had been able to read and
work by natural light. Fresh air came into the cells through the
small windows which could be opened and closed without any
difficulties. All cells were equipped with the mandatory ventilation
system, toilet and washstands which the applicant could have used at
any time and which offered privacy. The applicant had been allowed
one hour's exercise per day. He had been provided with drinking
water. The cells were not overrun with insects or rodents.
C. The medical assistance provided to the applicant in
detention
- The
applicant suffers from a number of chronic diseases such as renal
failure, hypertension and podagra. In 2002 he was designated Category
3 disabled, which had to be reassessed on a regular basis by medical
examination.
1. Medical assistance in remand prison no. 52/1
- According
to the applicant, upon his arrival at remand prison no. 52/1 on
8 July 2003 he asked the prison medical staff to place him in the
medical unit for examination. They refused him on the ground that
there was no available space and offered to place him there at his
own expense. The applicant asked the general
practitioner of the prison to prescribe him some treatment. The
doctor replied that he (the applicant) would not receive any
treatment until he agreed to collaborate with the investigating
authorities. On 9 July 2003 the applicant's relatives paid the
amount required, however he was not admitted to hospital.
- On
15 August 2003 the applicant's lawyer lodged a request with the
investigator in charge of the applicant's criminal case in which he
asked for the applicant not to be transferred between remand prisons
and different police stations in view of his poor health. In that
request he also submitted that the applicant had not been admitted to
the prison hospital. On the same day the investigator replied that
the investigating authorities had been aware of the applicant's
medical condition and that they had not hindered the applicant's
access to medical assistance in the remand prison.
- On
29 September 2003 the applicant was admitted to the prison hospital
and remained there until 21 October 2003. Subsequently, he was
hospitalised on several other occasions from 23 to 31 December 2004,
12 to 28 December 2005 and 24 January to 2 February 2006.
- It
appears that the applicant did not complain to the remand prison
administration that there was a delay in placing him in the hospital.
Neither did he contest the fact that he had to pay for his treatment.
It also appears that he did not lodge any complaint with competent
domestic authorities about the quality of treatment provided to him
in the hospital of remand prison no. 52/1.
- The
Government submitted that upon the applicant's arrival to remand
prison no. 52/1 he had been examined by medical staff and had been
diagnosed with a number of chronic diseases such as renal failure,
podagra and hypertension. During his stay in that prison the
applicant had undergone out-patient and in-patient treatment. During
his in-patient treatment the applicant had undergone regular blood
and urine examinations to monitor his state of health. On several
occasions the applicant had been examined by qualified specialists,
such as a general practitioner, eye specialist, neurologist,
dermatologist, rheumatologist, dentist and surgeon. In February 2004
and February 2006 the applicant had also undergone two medical
examinations which had confirmed that he was Category 3 disabled.
2. Medical assistance in remand prison no. 77/3
- An
examination to reassess the applicant's disability status was to have
taken place in January 2005. The applicant alleged that upon his
transfer to remand prison no. 77/3 in January 2005 the head of the
prison had informed him that the meeting of the commission could not
take place there owing to the absence of qualified specialists in
their medical unit. Therefore, the applicant's disability status was
not renewed until 1 February 2006.
- The applicant further alleged that most of the
medicines provided to detainees in the remand prison had been out of
date. There had been no dentist at the prison. In case of severe
toothache the detainees had been transferred to another remand prison
to have teeth removed. The food in the prison had been of very poor
quality and the applicant had had stomach pains as a consequence.
- It appears that the applicant did not lodge any
complaints about the quality of medical assistance in remand prison
no. 77/3 with the competent domestic authorities.
- The
Government submitted that in remand prison no. 77/3 the applicant had
undergone out-patient treatment. Since the applicant's state of
health had been stable he had not been placed in the prison hospital.
D. Alleged harassment of the applicant in connection
with his application to the Court
1. Information provided by the applicant
- The
applicant submitted that on 7 February 2006 a certain Mr Sh., an
official of the prison department questioned the applicant about his
complaints to the Court and, in particular, about the conditions of
his detention in remand prison no. 52/1. The applicant explained
which aspects of his detention had been unsatisfactory to him. Mr Sh.
asked the applicant to testify in writing that he had no complaints
about the staff of the remand prison since the conditions of
detention in the prison had been poor owing to a lack of funds. The
applicant refused to produce such a statement.
- On the same date a prison doctor asked the applicant
about his health and examined him. Also on the same date the prison
authorities measured cell no. 8/59, in which the applicant was
detained, disinfected the floor and the mattresses.
- On
8 February 2006 the head of one of the units of remand prison no.
52/1 interviewed the applicant about his application to the Court. He
promised to provide him (the applicant) with bedding and asked him to
prepare a written statement indicating that during his stay in the
prison he had been provided with bedding. The applicant refused.
- On
9 February 2006 the medical assistant of the remand prison asked the
applicant to provide a written statement saying that he had no
complaints about the medical staff of the prison. The applicant
replied that he had a number of such complaints, which he had
described in his application to the Court.
- On
the same date Mr Sh. again asked the applicant to provide a written
statement saying he had no complaints about the staff of remand
prison no. 52/1. The applicant refused.
- In March 2006 the applicant's
representative forwarded letters to the Court from Mrs Lisina, the
applicant's acquaintance, and Mrs S. Gasanova, the applicant's
mother, as well as copies of the complaints lodged with the
prosecutor's office by counsel Ya., who had represented the applicant
in the criminal proceedings against him.
- Mrs Lisina, who had been a witness for the applicant
during his trial, claimed that on 14 February 2006 at around 7.30
a.m. a certain Mr G. from the regional prosecutor's office had phoned
her and invited her to come to the prosecutor's office to discuss the
circumstances of the applicant's arrest in June 2003. Mrs Lisina had
refused since she had already given testimony in this respect during
the applicant's trial and she had nothing to add to her previous
statements. She added that, should there be any further questions in
this connection, the prosecutor's office should send her an official
summons. Mrs Lisina was not contacted again by any state officials.
- The applicant's mother submitted that on 27 March 2006
at 6 p.m. two officers from the Nizhniy Novgorod Department of the
Interior had come to her apartment and questioned her about her son's
whereabouts. At around 8 p.m. on the same date she had received a
phone call from an unknown man who had told her to dissuade her son
from writing complaints abroad or he would have problems in prison.
On the next day the applicant's mother complained to the regional
prosecutor about the events of 27 March 2006.
- On 29 March 2006 counsel Ya. complained to the
regional prosecutor that on 27 March 2006 an unknown man had called
him and asked him to advise the applicant to stop writing complaints
abroad and that, if he did not, he would have big problems in prison.
2. Information provided by the Government on the
investigation carried out into the applicant's allegation of
harassment
- On 14 April 2006 the prosecution authorities replied
to counsel Ya. that the investigation carried out in respect of his
allegations had established that the applicant had had no problems in
prison.
- On 18 and 19 April 2006 the regional prosecutor
interviewed Mr Sh., the official of the prison department, Mrs
N., deputy head of the hospital of remand prison no. 52/1 and Mrs
Ch., head of the unit of that hospital and drafted records of those
interviews.
Mr Sh. confirmed that on 7 and 9 February 2006 he had met the
applicant to find out his reasons for lodging an application with the
Court and to verify his complaints. He had not asked the applicant to
produce any written statements nor had he put any pressure on him.
Mrs N. and Mrs Ch. submitted that during his stay in the remand
prison the applicant had been admitted to the prison hospital on
several occasions. Hospital staff had never asked him to produce any
written statements retracting his complaints lodged with the Court.
- On 24 April 2006 the investigator with the
prosecutor's office of the Leninskiy District of Nizhniy Novgorod
refused to initiate criminal proceedings in respect of the
applicant's mother's complaints of threats sent to her address. The
decision stated that two officers of the Department of the Interior
had interviewed the applicant's mother in connection with the
criminal proceedings initiated in 2002 in respect of her other son,
Mr R. Gasanov, who had fled the investigation. In
particular, they had asked her about her son's whereabouts. The two
officers had not threatened the applicant or his mother. On 6 May
2006 the deputy prosecutor of the Leninskiy District of Nizhniy
Novgorod quashed the decision of 24 April 2006 on the ground that it
had not been properly substantiated and referred the materials for
additional verification.
- On 6, 7 and 8 May 2006 an
official from the Department of the Interior interviewed officers who
had visited the applicant's mother on 27 March 2006. He also
interviewed counsel Ya., Mrs Lisina and the applicant's mother in
connection with their complaints of threats directed at the
applicant.
- It appears from the Government's submissions that on
12 May 2006 the regional prosecutor refused to initiate criminal
proceedings in respect of the complaints lodged by the applicant's
mother, counsel Ya. and Mrs Lisina.
II. RELEVANT DOMESTIC LAW
- The Law “On the conditions of detention of
suspects and accused persons” of 1995 (as amended) provides
that detainees should be kept in conditions which satisfy health and
hygiene requirements. They should be provided with an individual
sleeping place and be given bedding, tableware and toiletries. Each
inmate should have no less than four square metres of personal space
in his or her cell (Article 23). It also provides that inmates are
entitled to medical assistance (Article 17). If an inmate's health
deteriorates, the medical officers of the remand prison are obliged
to examine him promptly and inform him of the results of the
examination in writing. If the inmate requests to be examined by
staff of other medical institutions, the administration of the
detention facility is to organise such an examination. If the
administration refuses, the refusal can be appealed against to a
prosecutor or court. If an inmate suffers from a serious disease, the
administration of the remand prison is obliged immediately to inform
the prosecutor, who can carry out an inquiry into the matter (Article
24).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
RESPECT OF THE CONDITIONS OF THE APPLICANT'S DETENTION
- The applicant complained that the conditions of his
detention in Nizhniy Novgorod remand prison no. 52/1 (between 8 July
2003 and 12 January 2005 and between 6 December 2005 and 14
February 2006) and in Moscow remand prison no. 77/3 (between 13
January and 5 December 2005) had been in breach of 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
1. Exhaustion of domestic remedies
- The Government argued that the applicant had not
exhausted the domestic remedies available to him in respect of his
complaints about conditions of detention in the remand prisons.
Neither the applicant nor his representative lodged any complaints of
poor conditions of detention in the above remand prisons to a
competent court or a prosecutor.
- The applicant replied that at the material time there
had been no effective domestic remedies in Russia to deal with
complaints concerning conditions of detention.
- The Court has already on a
number of occasions examined the same objection by the Russian
Government and dismissed it. In particular, the Court held in the
relevant cases that the Government had not demonstrated what redress
could have been afforded to the applicant by a prosecutor, a court or
another State agency, bearing in mind that the problems arising from
the applicant's conditions of detention were apparently of a
structural nature and did not concern the applicant's personal
situation alone (see Kalashnikov v. Russia (dec.), no.
47095/99, 18 September 2001; Moiseyev v. Russia (dec.), no.
62936/00, 9 December 2004; and, more recently, Guliyev v. Russia,
no. 24650/02, § 34, 19 June 2008).
- In the present case, the Government have failed to
submit evidence as to the existence of any domestic remedy by which
the applicant could have complained about the general conditions of
his detention, in particular with regard to the structural problem of
overcrowding in Russian detention facilities, or demonstrating that
the remedies available to him were effective, that is to say, that
they could have prevented violations from occurring or continuing, or
that they could have afforded the applicant appropriate redress (see,
to the same effect, Babushkin v. Russia, no. 67253/01, §
37, 18 October 2007, and, more recently, Aleksandr
Makarov v. Russia, no. 15217/07, §§
82-91, 12 March 2009). Accordingly,
the Court dismisses the Government's objection as to non-exhaustion
of domestic remedies.
2. Compliance with the six-month rule
- The
Government considered that the applicant's complaint about the
conditions of his detention in remand prison no. 52/1 between 8 July
2003 and 12 January 2005 had been lodged out of time. In particular,
the applicant's detention in different facilities should not be
regarded as a continuous situation. The first period of the
applicant's detention in remand prison no. 52/1 ended on 12 January
2005, whereas the application was lodged on 30 July 2005.
- The
applicant argued that his detention in different remand prisons
should be regarded as a continuous violation of his rights, since the
conditions of detention in the different facilities had been very
similar. His detention ended on 14 February 2006 and therefore, by
lodging his complaint on 30 July 2005, he had complied with the
six-month requirement.
- The
Court reiterates that Article 35 § 1 of the Convention permits
it to deal with a matter only if the application has been lodged
within six months of the date of the final decision in the process of
exhaustion of domestic remedies. The object of the six-month
time-limit is to promote legal certainty by ensuring that cases
raising issues under the Convention are dealt with within a
reasonable time and that past events and decisions are not
continually open to challenge. It also reiterates that in cases where
there is a continuing situation, the six-month period runs from the
cessation of that situation (see Koval v. Ukraine (dec.), no.
65550/01, 30 March 2004). In the instant case, the applicant
complains about conditions of detention in two detention facilities.
Therefore, with respect to the Government's objection that the
complaint about detention conditions in remand prison no. 52/1
between 8 July 2003 and 12 January 2005 had been submitted too late,
the question to be resolved is whether the whole period of the
applicant's detention constitutes a “continuing situation”,
and thus meets the six-month criterion.
- The
Court reiterates that the concept of a “continuing situation”
refers to a state of affairs in which there are continuous activities
by or on the part of the State which render the applicant a victim
(see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR
2002 VII). Complaints which have as their source specific events
which occurred on identifiable dates cannot be construed as referring
to a continuing situation (see Camberrow MM5 AD v. Bulgaria,
(dec.), no. 50357/99, 1 April 2004).
- In the present case, the applicant complained about
the conditions of his detention in two remand prisons, and he did so
consistently. Throughout the whole period of his detention he was not
released at any time. His complaints do not relate to any specific
event but concern the whole range of problems regarding the
overcrowding, sanitary conditions and so on which he allegedly
suffered during the entire period of his detention. It follows that
the applicant's detention in remand prisons nos. 52/1 and 77/3 can be
regarded as a continuous situation (see, for instance, Benediktov
v. Russia, no. 106/02, § 31, 10 May 2007; Igor
Ivanov v. Russia, no. 34000/02, § 30, 7 June 2007;
Seleznev v. Russia, no. 15591/03, § 36, 26 June
2008; and, more recently, Goroshchenya v. Russia, no.
38711/03, § 62, 22 April 2010; and, by contrast, Maltabar
and Maltabar v. Russia, no. 6954/02, §§ 82-84, 29
January 2009). Accordingly, the Court dismisses the Government's
objection to this effect.
3. Conclusion
- Having
regard to its conclusions in paragraphs 51 and 56 above, the Court
considers that the applicant's complaints about the conditions of
detention in remand prisons nos. 52/1 and 77/3 are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
- The
Government considered that the mere fact of detention in one cell of
a number of inmates exceeding the designed capacity of that cell was
not in itself a ground for finding a violation of the applicant's
rights under Article 3 of the Convention, since other aspects of his
detention had been in compliance with the requirements of the
Convention. In particular, during his detention the applicant had
been provided with an individual sleeping place and bedding.
Moreover, overcrowding in remand prisons was a common problem for
many member States of the Council of Europe. In the Russian
Federation the overcrowding was due to a high level of criminality
and limited capacity of remand prisons. The remand prison
administration had not had any intention to humiliate the applicant.
The Government considered that the overcrowding of the cells in which
the applicant had been detained could not in itself be a ground for
drawing a conclusion about inhuman treatment of the applicant. In
sum, the conditions of the applicant's detention in remand prisons
nos. 52/1 and 77/3 had complied with the requirements of Article 3 of
the Convention.
- The applicant maintained his complaint.
- The Court notes that the parties disagreed as to
certain aspects of the applicant's conditions of detention in remand
prisons nos. 52/1 and 77/3. However, there is no need for the Court
to establish the truthfulness of each and every allegation, since it
finds a violation of Article 3 on the basis of the evidence that have
been presented or is undisputed by the Government, for the following
reasons.
- The Government conceded that the applicant had been
detained in cells with a number of detainees exceeding the designed
capacity of those cells, which is four square metres according to
domestic law (see “Relevant domestic law” above). The
Court observes that the Government provided detailed information on
the cells in which the applicant had been detained, including the
dates of the applicant's stay in each cell, surface of the cells and
number of beds in each cell. In respect of the remand prison no. 77/3
they indicated a number of inmates per cell detained together with
the applicant ranging from a minimum to a maximum number. In respect
of the remand prison no. 52/1 the Government cited an average number
of inmates per cell detained together with the applicant which
implies that at times the actual number of detainees had been higher.
As the Government have not produced any official record indicating
the number of detainees per cell detained with the applicant, it is
impossible for the Court to establish this number. Nevertheless, it
is obvious that, in times when the number of inmates detained in the
same cell together with the applicant reached the maximum number
indicated by the Government in respect of remand prison no. 77/3 and,
respectively, the average number cited for the remand prison no.
52/1, detainees were afforded less than three square metres of floor
space per person (see paragraphs 17-18 and 20-21 above). Therefore,
the Court finds that for the majority of the applicant's detention in
remand prisons nos. 52/1 and 77/3 which lasted for approximately two
years and seven months, the applicant was afforded less than three
square metres of personal space and was confined to his cell day and
night, save for one hour of outdoor exercise per day.
- In this connection the Court reiterates that in many
cases in which detained applicants had at their disposal less than
three square metres of personal space, it has already found that the
lack of personal space afforded to them was so extreme as to justify
in itself a finding of a violation of Article 3 of the Convention
(see, among many others, Andrey Frolov v. Russia, no.
205/02, §§ 50-51, 29 March 2007; Lind v. Russia,
no. 25664/05, §§ 61-63, 6 December 2007; Lyubimenko
v. Russia, no. 6270/06, §§ 58-59, 19 March 2009;
and, more recently, Veliyev v. Russia, no. 24202/05, §§
129-130, 24 June 2010). The Court is also mindful of the fact that
the cells in which the applicant was detained contained some
furniture and fittings, such as bunk beds and the lavatory, which
must have further reduced the floor area available to him.
- Having regard to its case-law on the subject, the
material submitted by the parties and the findings above, 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. Although in the present case there is no indication
that there was a positive intention to humiliate or debase the
applicant, the Court finds that the fact that for approximately two
years and seven months 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 fear, anguish and inferiority capable of
humiliating and debasing him.
- The Court concludes that by keeping the applicant in
overcrowded cells, the domestic authorities subjected him to inhuman
and degrading treatment. There has therefore been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention in Nizhniy Novgorod remand prison no. 52/1 and
in Moscow remand prison no. 77/3.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF A LACK OF MEDICAL ASSISTANCE GIVEN TO THE APPLICANT DURING
HIS DETENTION
- The applicant complained that he had not been provided
with adequate medical treatment during his detention in remand
prisons nos. 52/1 and 77/3. He relied on Article 3 of the Convention
which was cited above (see paragraph 47 above).
- The Government submitted that in both remand prisons
the applicant had been provided with adequate medical assistance.
They further claimed that the applicant had not complained of a lack
of medical assistance or about the quality of medical treatment to
the administrations of the remand prisons.
- The applicant maintained his complaint.
- The Court reiterates that the rule of exhaustion of
domestic remedies obliges those seeking to bring their case against
the State before an international judicial or arbitral organ to use
first the remedies provided by the national legal system. The rule is
based on the assumption that there is an effective remedy available
in respect of the alleged breach in the domestic system whether or
not the provisions of the Convention are incorporated in national
law. In this way, it is an important aspect of the principle that the
machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights (see Handyside
v. the United Kingdom, 7 December 1976, § 48, Series A
no. 24). At the same time, it is incumbent on the Government
claiming non-exhaustion to satisfy the Court that the remedy was an
effective one available in theory and in practice at the relevant
time, that is to say, that it was accessible, capable of providing
redress in respect of the applicant's complaints and offered
reasonable prospects of success (see Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002-VIII).
- Turning to the circumstances of the present case, the
Court observes that the applicant, who was assisted by a lawyer
during the criminal proceedings against him, did not lodge any
separate complaint of a lack of medical treatment or about the
quality of the treatment provided in the remand prisons to their
administrations, as suggested by the Government, or to a prosecutor
or court.
- In this connection, the Court reiterates that where
the applicant's complaint stems not from a known structural problem,
such as general conditions of detention, and overcrowding in
particular, but from an alleged specific act or omission by the
authorities, the applicant must be required, as a rule, to exhaust
domestic remedies in respect of it. The Court has already established
that applicants complaining of a lack of medical assistance in Russia
should raise their complaints with the competent domestic
authorities, including the administration of the detention facility
(see, among the most recent authorities, Popov and Vorobyev v.
Russia, no. 1606/02, §§
65-67, 23 April 2009). In that case the Court
noted that, under the applicable domestic laws, an inmate had the
right to request that his or her medical examination be conducted by
medical officers of other medical institutions and, if the
administration of the detention facility refused to arrange such an
examination, to appeal against that decision to a prosecutor or
court. The Court discerned no indication that such a remedy
would have been ineffective in the circumstances of that case.
Accordingly, the Court did not find any grounds for absolving the
applicants from the requirement to exhaust domestic remedies in
connection with the alleged lack of medical care.
- The
Court sees no reason to reach a different conclusion in the present
case. The Court accepts the Government's assertion that the applicant
did not complain to domestic authorities about the lack or inadequacy
of the medical assistance and therefore did not afford them an
opportunity to address the issue and, if appropriate, to remedy the
situation. It follows that this part of the application must be
rejected for non-exhaustion of domestic remedies pursuant to Article
35 §§ 1 and 4 of the Convention.
III. ALLEGED FAILURE TO COMPLY WITH OBLIGATIONS UNDER
ARTICLE 34 OF THE CONVENTION
- The applicant complained that in February 2006
domestic authorities had questioned him in connection with his
application to the Court and urged him to testify that his
submissions to the Court had been untrue. He further complained that
the authorities had put pressure on Mrs Gasanova, his mother, Mrs
Lisina, his acquaintance and Mr Ya., his former counsel. The Court
will examine this complaint under Article 34 of the Convention which
provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. The parties' submissions
- The Government submitted that state authorities had
not put pressure on the applicant or any of his relatives or
acquaintances. The remand prison officials had met the applicant, in
the framework of their official duties, with a view to eliminating
any possible violation of his rights. They had not asked him to
retract his complaints to the Court. The state officials had
contacted Mrs Lisina in order to get her explanations regarding the
applicant's complaints of ill-treatment by police. The two
investigators visited the applicant's mother in connection with the
criminal proceedings initiated in 2002 against her other son, Mr R.
Gasanov, who had been at large and the subject of a police search. As
to the phone calls to the applicant's mother and counsel Ya.,
according to information provided by the phone company, on 27 March
2006 the applicant's mother had had phone conversations only with her
relatives and acquaintances, and counsel Ya. had had phone contact
only with his clients. Therefore, the prosecutor's office refused to
initiate criminal proceedings in this respect. Furthermore, according
to the statements given to the prosecutor's office by the applicant
he had not been threatened or put under any other pressure since his
arrival at the correctional facility.
- The
applicant submitted that the authorities had not provided any
documents confirming that an official investigation was opened into
the complaints described in his application to the Court. Neither had
they provided the Court with records of the interviews held by state
officials with the applicant.
B. The Court's assessment
- The Court reiterates at the outset that a complaint
under Article 34 of the Convention is of a procedural nature and
therefore does not give rise to any issue of admissibility under the
Convention (see Ryabov v. Russia, no. 3896/04, § 56,
31 January 2008, with further references).
- The Court further reiterates that it is of the utmost
importance for the effective operation of the system of individual
petition instituted by Article 34 that applicants should be able
to communicate freely with the Convention organs without being
subjected to any form of pressure from the authorities to withdraw or
modify their complaints. The expression “any form of pressure”
must be taken to cover not only direct coercion and flagrant acts of
intimidation of applicants or their legal representatives but also
other improper indirect acts or contact designed to dissuade or
discourage them from pursuing a Convention remedy (see Kurt v.
Turkey, 25 May 1998, § 160, Reports of Judgments and
Decisions 1998-III, and Tanrıkulu v. Turkey [GC], no.
23763/94, § 130, ECHR 1999-IV, with further references).
- Furthermore, whether or not contact between the
authorities and an applicant are tantamount to unacceptable practices
from the standpoint of Article 34 must be determined in the light of
the particular circumstances of the case. In the context of the
questioning of applicants about their applications under the
Convention by authorities exercising a domestic investigative
function, this will depend on whether the procedures adopted have
involved a form of illicit and unacceptable pressure which may be
regarded as hindering the exercise of the right of individual
application (see, for example, Aydin v. Turkey, 25 September
1997, §§ 115-17, Reports 1997-VI, and Salman v.
Turkey [GC], no. 21986/93, § 130, ECHR 2000 VII).
Regard must also be had to the vulnerability of the applicant and his
or her susceptibility to influence exerted by the authorities (see
Akdivar and Others v. Turkey, 16 September 1996, §
105, Reports 1996-IV). The applicant's position might be
particularly vulnerable when he is held in custody with limited
contact with his family or the outside world (see Cotleţ v.
Romania, no. 38565/97, § 71, 3 June 2003). Even an
informal “interview” of the applicant, let alone his or
her formal questioning in respect of the Strasbourg proceedings, may
be regarded as a form of intimidation (see, by contrast, Sisojeva
and Others v. Latvia [GC], no. 60654/00, §§
117 et seq,, ECHR 2007 II).
- The Court also reiterates that the fact that the
individual actually managed to pursue his application does not
prevent an issue arising under Article 34: should the Government's
action make it more difficult for the individual to exercise his
right of petition, this amounts to “hindering” his rights
under Article 34 (see Akdivar and Others, cited above, §
105). The intentions or reasons underlying the acts or omissions in
question are of little relevance when assessing whether Article 34 of
the Convention was complied with; what matters is whether the
situation created as a result of the authorities' act or omission
complies with Article 34 (see Paladi v. Moldova [GC],
no. 39806/05, § 87, 10 March 2009).
- In the instant case the parties agreed that state
officials had spoken to the applicant on several occasions in
February 2006 and questioned him about his application to the Court.
However, the parties' submissions differ as to the content of those
interviews, in particular, in so far as the applicant alleged that
the officers had asked him to testify in writing that he had no
complaints about the staff of the remand prison.
- The Court reiterates that where a Government have
claimed that state officials contacted the applicant as part of a
domestic investigation into complaints raised by the applicant before
the Court, it has found that the Government were under an obligation
to provide documents showing that such an investigation had been
instituted and that this had been done in accordance with domestic
procedure. They were also required to provide documents concerning
the conduct and findings of such an investigation (see Popov v.
Russia, no. 26853/04, § 249, 13 July 2006). In the present
case the Government provided documents relating to their
investigation of the applicant's complaints of harassment (see
paragraph 42 above). As to his complaints lodged before the Court, it
appears that a number of investigative measures were taken, in
particular in respect of his allegations of poor conditions of
detention, of which the report issued by the prison department
testifies (see paragraph 18 above). However, the Government have not
provided transcripts of meetings between the applicant and the remand
prison officials. In the absence of those documents and of any other
convincing evidence the Court is unable to verify the content of
questions put to the applicant by the prison officials. It is
regrettable that the Government have not provided those documents;
however, the Court considers that the report issued by the prison
department (see paragraph 42 above) testifies that there had been an
official investigation into the applicant's complaints raised before
this Court. Therefore, the Court is satisfied that the authorities
had contacted the applicant in connection with the domestic
investigation.
- Furthermore, the Court considers that not every
inquiry by the authorities on an application pending before the Court
can be regarded as “intimidation”. Article 34 does not
prevent the State from taking measures in order to improve the
applicant's situation or even from solving the problem which is at
the heart of the Strasbourg proceedings. As it follows from the
applicant's submissions, following his contact with the prison
officials, the applicant was examined by a doctor and prison
authorities disinfected the mattresses and the floor of the cell in
which he was detained (see paragraph 33 above). Therefore, the Court
is ready to accept that in February 2006 the prison officials
contacted the applicant with a view to improving his situation and
considers that the actions of the authorities cannot be described as
“improper”. Furthermore, it cannot be said that at the
time of the events the applicant was in a particularly vulnerable
position. In the proceedings before the Court the applicant was
represented by two lawyers with whom he had been in contact either
directly or through his relatives and who had informed the Court of
any new developments in his case, including his contact with the
prison officials. Moreover, by that time the applicant's conviction
had become final and he was about to be transferred to a correctional
colony to serve his sentence. The Court also does not loose sight of
the fact that the Government have investigated the applicant's
complaints of his contact with the prison officials.
- Taking into account all the relevant circumstances of
the case, the Court considers that there is insufficient evidence to
conclude that the state officials' interviews with the applicant in
February 2006 should be regarded as a form of “pressure”,
“intimidation” or “harassment” which might
have induced the applicant to withdraw or modify his application or
hindered him in any other way in the exercise of his right of
individual petition.
- Regarding the alleged pressure put on the applicant's
mother, his acquaintance Mrs Lisina and his counsel Ya, the Court
observes that after this information had been communicated to the
Government, the authorities took steps to investigate it and
established that there had been no reason to initiate criminal
proceedings in this respect. Having regard to the information in its
possession, the Court considers that there is insufficient factual
basis to enable it to conclude that any undue pressure or any form of
coercion was put on the applicant's mother, his acquaintance Mrs
Lisina and his counsel Ya.
- Having regard to its findings in paragraphs 82 and 83
above the Court considers that in the present case the Government
have not breached their obligations under Article 34 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the remainder of the complaints raised by the
applicant. However, in the light of the material in its possession,
and in so far as the matters complained of are within its competence,
the Court finds that they do not disclose any appearances 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 and 4 of the Convention.
V. 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 sustained by him as a result of alleged
ill-treatment by police. He further claimed EUR 45,000 in respect of
non-pecuniary damage sustained as a result of poor conditions of
detention and EUR 10,000 in respect of non-pecuniary damage sustained
by his family. In respect of pecuniary damage, the applicant claimed
EUR 500 for a disability allowance which had not been paid to him in
2005.
- The Government submitted that the applicant's claims
were excessive and unsubstantiated.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, having regard to the nature of
the violation found and making its assessment on an equitable basis,
it awards the applicant EUR 12,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant requested EUR 5,000 for legal costs
incurred before the Russian courts in connection with the criminal
proceedings against him. He further submitted that his
representatives in the proceedings before the Court had provided him
with free legal advice since he had no means to pay them. He
requested that the Court award them any amount which it considered
reasonable.
- The Government considered that the award for costs and
expenses should be determined in accordance with the Court's
practice.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. Furthermore, the costs of
the domestic proceedings can be awarded if they are incurred by the
applicants in order to try to prevent the violation found by the
Court or to obtain redress therefore (see, among many authorities,
Peck v. the United Kingdom, no. 44647/98, § 127,
ECHR 2003 I).
- In the present case, regard being had to the nature of
the violation found, the Court rejects the applicant's claim relating
to legal costs before Russian courts. The Court further notes that it
has granted legal aid to the applicant, which appears to be
sufficient to cover expenses incurred in the proceedings before it.
C. Default interest
- The Court considers it appropriate that the default
interest 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
- Declares the complaints concerning the
conditions of the applicant's detention in Nizhniy Novgorod remand
prison IZ-52/1 and in Moscow remand prison IZ-77/3 admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention in respect of conditions of the applicant's
detention in Nizhniy Novgorod remand prison IZ-52/1 and in Moscow
remand prison IZ-77/3;
- Holds that the Government have not failed to
comply with its obligations under Article 34 of the Convention;
- 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 12,000 (twelve thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount, to be converted into Russian roubles at the rate applicable
on 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
