BUTRIN v. RUSSIA - 16179/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 291 (22 March 2016)

In the case of Butrin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          George Nicolaou,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 1 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16179/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Georgiyevich Butrin (“the applicant”), on 28 January 2014.

2. The applicant was represented by Mr V. Butrin, a lawyer practising in the town of Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant argued, in particular, that the conditions of his detention in a correctional colony were unsuitable for a blind detainee such as himself, and that he had no effective remedy by which to complain in this regard.

4. On 3 September 2014 the complaints concerning the conditions of the applicant’s detention in a correctional colony and the lack of effective remedies were communicated to the Government, and the remainder of the application was declared inadmissible.

5. On the same day, in response to the applicant’s request, the Court granted priority to the application under Rule 41 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1949 in the Khabarovsk Region. He is serving his prison sentence in a correctional colony in the village of Kochubeyevskoe, Stavropol Region.

A. Criminal proceedings against the applicant

7. On 9 March 2006 the applicant was arrested on suspicion of aggravated murder, robbery and firearms possession. He remained in detention throughout the investigation and trial.

8. On 28 July 2006 the Stavropol Regional Court found him guilty as charged and sentenced him to nineteen years’ imprisonment in a correctional colony.

B. The applicant’s state of health and conditions of his detention

9. On 10 February 2010 the applicant was sent to serve his sentence in correctional colony no. IK-17/1 in the village of Kochubeyevskoe, Stavropol Region (“the correctional colony”).

10. When the applicant arrived at the colony the resident doctor noted that he had a first-degree disability: he was totally blind as a result of mature cataracts in both eyes. His blindness, which had developed during his detention, meant that he was unable to move around alone. In addition, he was suffering from coronary disease, hypertension, gallstones and chronic pancreatitis. He was included on a list of detainees requiring enhanced medical attention.

11. The applicant was assigned to colony unit no. 10 for special-needs detainees, which comprised a separate dormitory. It housed forty-six detainees with various disabilities or serious illnesses. The unit had a dormitory measuring 149.6 square metres, a dining room, a toilet, showers, and several offices for administrative and medical personnel. A large part of the dormitory floor area was taken up by furniture such as bunk beds, bedside tables and chairs. According to a certificate issued by the correctional colony on 13 October 2014, each detainee was afforded 2.82 square metres of living space. As is apparent from the documents and photographs submitted by the Government, the premises were not adapted for visually impaired or blind persons.

12. The authorities assigned another inmate with cardiac problems to assist the applicant with his basic needs. The inmate did not receive any remuneration for the assistance he provided to the applicant. He helped the applicant to move around the dormitory and to take showers, and guided him in the dining room. The applicant had no prison work; he remained in the unit throughout the day.

13. According to the applicant, he faced particular difficulties in orientating himself in the correctional colony. He regularly stumbled over objects, slipped and fell. Such helplessness induced anguish and despair. In 2011 he was diagnosed as having an emotionally unstable personality disorder.

14. On 21 February 2011 and 19 November 2012 a medical commission confirmed the applicant’s disability. They recommended that the authorities provide him with a walking stick, a white cane, a player for audiobooks designed for blind people, a vocal clinical thermometer and a vocal tonometer. The recommendations were never enforced. According to two entries in his medical record, on 30 November 2011 and 23 January 2013 officials asked the applicant whether he wished to receive those items. The applicant allegedly refused, but did not agree to make a written note to that effect in the medical record.

15. In September 2014 the inmate who had been assisting the applicant was released from detention and the applicant was left to fend for himself. According to a certificate issued by the authorities, he refused the assistance of other inmates.

C. Application for release on health grounds

16. On 8 February 2013 the applicant asked for a medical examination to determine whether his state of health warranted his early release.

17. On 5 April 2013 a medical commission held that as blindness was one of the diseases listed in Government Decree no. 54 of 6 February 2004 that may warrant release from a correctional institution, the applicant could be relieved from serving his sentence.

18. Relying on the conclusion of the medical commission, the applicant lodged an application with the Kochubeevskoe District Court, Stavropol Region, for release on health grounds. On 16 April 2013 the District Court dismissed the application. Referring to Ruling no. 21 of the Supreme Court of Russia dated 20 December 2011 (see paragraph 26 below), the court noted that the fact that the applicant’s illness was included in the list provided for by Government Decree no. 54 did not automatically mean that he would be released. The court cited the gravity of the crimes committed by the applicant and the length of the prison term he had yet to serve. Taking those two factors into account, the court concluded that the applicant should remain in the correctional colony. The Stavropol Regional Court upheld that judgment on appeal.

19. On 10 July 2014 the Supreme Court of Russia rejected a cassation appeal lodged by the applicant without examining it on the merits. It found that the applicant had failed to lodge the appeal within the statutory time-limit.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. General conditions of detention

20. The relevant provisions of domestic law governing conditions of detention in correctional facilities in the Russian Federation and provisions establishing the legal avenues for complaining about detention conditions are set out in the cases of Reshetnyak v. Russia (no. 56027/10, §§ 35-46, 8 January 2013) and Dirdizov v. Russia (no. 41461/10, §§ 47-62, 27 November 2012).

B. Detention of disabled detainees

21. The Russian Code of Execution of Sentences sets out certain requirements for the detention of disabled detainees. While Article 99 § 1 of the Code provides for a minimum standard of 2 sq. m of personal space for male convicts in correctional colonies and 3 sq. m of personal space in prison health-care facilities, Article 99 § 6 indicates that inmates with a category 1 or 2 disability are entitled to “improved accommodation and living conditions”. Article 88 § 6 provides that disabled detainees have a right to buy food and articles of primary necessity without any limitations. Article 90 allows ill or disabled inmates to receive additional parcels or packages, including ones containing medication, the content and quantity of which must be determined by medical specialists. Under Article 99 §§ 6 and 7 disabled inmates must be provided with food, clothing and toiletries free of charge. They are also entitled to an enriched diet.

22. Under the Internal Regulations of Correctional Facilities adopted by the Russian Ministry of Justice on 3 November 2005, disabled inmates are exempted from having to participate in daily roll calls. Their presence is noted in whichever part of the facility they are at the time.

23. Russian law has no specific rules or requirements regulating the detention of visually impaired or blind detainees.

C. Early release on health grounds

24. Article 175 § 6 of the Penitentiary Russian Code of Execution of Sentences provides as follows:

“A detainee who has acquired a serious illness [other than psychiatric] which prevents him from serving his sentence may lodge a request with a court for [early] release ... [This request] must be lodged by the detainee through the administration of the penal facility ... The said request must be accompanied by the expert opinion of a medical commission or a socio-medical expert institution and the detainee’s prison record.”

25. On 6 February 2004 the Government of the Russian Federation adopted Decree no. 54 on illnesses warranting release on health grounds. The list of diseases included full blindness.

26. In accordance with paragraph 8 of Ruling no. 21 of the Supreme Court of Russia of 20 December 2011, when deciding whether a detainee should be released on health grounds the court should check whether the detainee’s disease is listed in Government Decree no. 54 of 6 February 2004. The court must also take into account other relevant circumstances.

III. RELEVANT INTERNATIONAL MATERIAL

27. The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol.

Article 1 of the Convention provides:

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The relevant part of Article 14 provides:

“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”

The relevant part of Article 15 provides:

“2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”

The requirements regulating personal mobility are laid down in Article 20, which reads as follows:

“States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:

Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;

Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;

Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;

Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.”

28. In his Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, stated as follows:

“50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...

...

53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...

54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”

IV. RELEVANT COUNCIL OF EUROPE MATERIAL

29. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:

e. Humanitarian assistance

“64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.”

...

iv) prisoners unsuited for continued detention

“70. Typical examples of this kind of prisoner are those who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.

...”

g. Professional competence

“76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated.

Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.

77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.”

30. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant:

III. The organisation of health care in prison with specific reference
to the management of certain common problems

C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis

“50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...”

31. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular:

IV. Guidelines for prison staff conduct

D. Care and assistance

“19. Prison staff shall be sensitive to the special needs of individuals, such as ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.

20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.

21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.

22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

32. Relying on Articles 3 and 13 of the Convention, the applicant complained that the conditions of his detention in the correctional colony were inhuman and degrading and that he did not have an effective domestic remedy for his grievances. The invoked provisions of the Convention 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. Submissions by the parties

33. As regards the applicant’s complaint under Article 3 of the Convention, the Government put forward two lines of argument. Firstly, they argued that the applicant’s claim should be rejected because he had failed to exhaust domestic remedies. They stressed that he had not challenged the refusal to release him on health grounds by way of the new cassation appeal procedure. Secondly, they argued that the applicant’s conditions of detention did not breach Article 3 of the Convention as he had been provided with adequate medical care and until September 2014 had been assisted in his daily needs by an assigned inmate.

34. As regards the complaint under Article 13 of the Convention, the Government stated that the gist of the applicant’s grievances was that the outcome of the proceedings for his release on health grounds had been unfavourable. However, that could not be interpreted as an absence of effective domestic remedies, because those proceedings had fully satisfied the “effective remedy” requirements within the meaning of Article 13 of the Convention.

35. The applicant maintained his complaints. He stated that the conditions of his detention were inhuman and degrading, in particular because the authorities did not provide him with equipment and assistance necessary for a blind detainee. He further stated that there was no other remedy for him to exhaust. He had unsuccessfully attempted to draw the attention of the authorities to the incompatibility of his condition with his further detention. His application for early release had been rejected.

B. The Court’s assessment

1. Admissibility

36. The Government have raised an objection of non-exhaustion of domestic remedies by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for the complaint that he was being subjected to inhuman and degrading treatment by being detained in inadequate conditions. The Court thus finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention.

37. The Court further notes that the applicant’s complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

(a) Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention

(i) General principles

38. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, §115, 23 February 2016; Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014 and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).

39. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Mozer, cited above, §116; Gherghina, cited above, § 85; Vučković and Others, cited above, § 71 and Akdivar and Others, cited above, § 66). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, §116; Gherghina, cited above, § 85; Vučković and Others, cited above, § 74 and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II).

40. The Court emphasises that the application of the rule must make due allowance for the fact that it is being applied in the context of a machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically: in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means, amongst other things, that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, §§ 65-68).

41. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. At the same time, the remedy required by Article 13 must be “effective” in practice as well as in law, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157-158, ECHR 2000-XI and Wasserman v. Russia (no. 2), no. 21071/05, § 45, 10 April 2008).

42. Where the fundamental right to protection against torture and inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3 of the Convention. Indeed, the particular importance attached by the Convention to that provision requires, in the Court’s view, that the States Parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Had it been otherwise, the prospect of future compensation would have legitimised particularly severe suffering in breach of this core provision of the Convention (see Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008).

(ii) Application of the above principles to the present case

43. Turning to the facts of the present case, the Court notes the Government’s argument that the applicant had failed to pursue his application for early release by means of the new cassation procedure, which they claimed could have been an effective avenue for complaining of the poor conditions of his detention. The Court observes, however, that it has previously dismissed that legal avenue as ineffective for an application for early release, because the Government had been unable to provide examples of domestic case-law demonstrating the practical effectiveness of that remedy (see Semikhvostov v. Russia, no. 2689/12, § 67, 6 February 2014). In the present case, the Government have also failed to explain how the new cassation procedure would work in respect of an inmate’s complaint, particularly when it concerns specific problems of conditions of detention. The Court’s doubts in this respect are strengthened by the refusal of the Russian courts at two instances to authorise the applicant’s early release, referring merely to the gravity of the charges against him and the fact that he had served only a small part of his sentence (see paragraph 18 above). The Russian courts did not make any attempt to examine the conditions of the applicant’s detention or to assess whether they were compatible with his disability. The Court has already examined a list of other domestic legal avenues available in Russian law and practice and found that none of them constituted an effective remedy that could have been used to prevent the alleged violations or their continuation and to provide the applicant with adequate and sufficient redress in connection with the complaints of unsatisfactory conditions of detention (see Gorbulya v. Russia, no. 31535/09, § 57, 6 March 2014 and Reshetnyak, cited above, § 80).

44. Having declared the applicant’s claim of inadequate conditions of detention admissible (see paragraph 37 above), and in view of his health problems and the seriousness of his allegations, the Court finds that it was “an arguable claim”. Accordingly, the respondent State had an obligation to ensure that an effective remedy was available to deal with the substance of his complaint. Taking into account the circumstances of the present case and the aforementioned case-law, the Court sees no reason to depart from its previous findings on the issue. It concludes that the legal avenues put forward by the Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention.

45. In the light of the above, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies and finds that the applicant did not have at his disposal an effective domestic remedy for his complaints, in breach of Article 13 of the Convention.

(b) Alleged violations of Article 3 of the Convention

(i) General principles

46. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

47. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s psychological and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).

48. The Court further reiterates that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds, even if he is suffering from a condition that is particularly difficult to treat. However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method in which the measure is enforced do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, ECHR 2000-XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012).

49. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Helhal v. France, no. 10401/12, § 50, 19 February 2015; Zarzycki v. Poland, no. 15351/03, § 102, 12 March 2013; Z.H. v. Hungary, no. 28937/11, § 29, 8 November 2012; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004).

50. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this had taken place on a regular basis. In addition to being cared for by his family, the applicant, who had a physical disability, was assisted by the medical staff during working hours and was helped by other inmates outside working hours on a voluntary basis. The Court expressed its concerns in the following terms (§ 60):

“The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.”

51. The Court has also held that detaining a disabled person in a prison where he could not move around and, in particular, could not leave his cell independently, amounted to degrading treatment (see Vincent v. France, no. 6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed contributed to its finding that the conditions of detention amounted to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010).

(ii) Application of the above principles to the present case

52. The Court will start by examining the issue of the personal space afforded to the applicant, a focal point of the Court’s assessment in many cases on conditions of detention (see Mela v. Russia, no. 34044/08, § 61, 23 October 2014; Klyukin v. Russia, no. 54996/07, § 55, 17 October 2013; and Geld v. Russia, no. 1900/04, § 24, 27 March 2012). It will then proceed to examine other relevant factors.

53. The Court observes at the outset that it is common ground between the parties that since 10 February 2010 the applicant has been detained in a correctional colony, that is to say a type of facility designed for the long-term accommodation of convicted detainees for the entire duration of their sentences. He is detained in a dormitory with forty-five other inmates, and is thus afforded 2.82 square metres of personal space. Much of the dormitory floor area is taken up by furniture such as bunk beds, bed stands and chairs (see paragraph 11 above).

54. In a number of cases where the applicants had at their disposal less than three square metres of floor surface in a prison cell where they remained locked up most of the time, the Court considered the overcrowding to be so severe as to justify of itself a finding of a violation of Article 3 (see, for example, Tatishvili v. Greece, no. 26452/11, § 43, 31 July 2014; Nieciecki v. Greece, no. 11677/11, §§ 49-51, 4 December 2012; Dmitriy Sazonov v. Russia, no. 30268/03, §§ 31-32, 1 March 2012; and Melnik v. Ukraine, no. 72286/01, §§ 102-03, 28 March 2006).

55. However, the Court has sometimes found it unnecessary to determine how much personal space should be allocated to a detainee in terms of the Convention. It has mostly concentrated on other aspects, such as the duration of detention in particular conditions, the opportunities for outdoor exercise, and the physical and mental condition of the detainee (see Trepashkin v. Russia, no. 36898/03, § 92, 19 July 2007, and Kadiķis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006). The Court considers that this is the approach that should be taken in the present case.

56. When assessing the issue of overcrowding in post-trial detention facilities such as correctional colonies, as opposed to pre-trial detention facilities and high-security prisons where inmates are confined to their cell for most of the day, the Court has held that the personal space in the dormitory should be viewed in the context of the applicable regime. The fact that detainees in correctional colonies enjoy a wider freedom of movement during the daytime may ensure that they have unobstructed access to natural light and air (see Insanov v. Azerbaijan, no. 16133/08, § 120, 14 March 2013).

57. On the other hand, even in cases where inmates appeared to have sufficient personal space at their disposal and where a larger prison cell was at issue - measuring in the range of three to four square metres per inmate - the Court noted other aspects of physical conditions of detention as being relevant for the assessment of compliance with Article 3. It found a violation of that provision, since the space factor was coupled with an established lack of ventilation and lighting (see, for example, Vlasov v. Russia, no. 78146/01, §§ 81 and 84, 12 June 2008) and a lack of outdoor exercise (see Longin v. Croatia, no. 49268/10, §§ 60-61, 6 November 2012).

58. The Court considers that the fact that a disabled detainee was afforded less than three square metres of personal space causes concern as to whether the requirements of Article 3 of the Convention were complied with.

59. The Court further considers that the conditions of the applicant’s detention cannot be assessed in isolation from his disability.

60. In this connection, the Court observes that the applicant was in need of constant assistance. Before September 2014 such assistance was provided by an inmate assigned by the prison administration. After the latter’s release, the applicant was left to fend for himself (see paragraph 15 above). The Court notes that the applicant was not provided with any basic items or devices which would have facilitated his stay in the detention facility, such as a walking stick (see paragraph 14 above). The premises of the facility were not adapted for visually impaired or blind people (see paragraph 11 above).

61. Accordingly, the applicant was not able to move about freely within the detention facility. His freedom of movement and his access to outdoor exercise were hampered by his disability. As he had no work, he was in practice confined to the dormitory, which seriously aggravated his conditions of detention, making them comparable to those of a remand prison.

62. Another aggravating factor is the fact that the applicant was detained with a large number of inmates. His dormitory housed forty-six prisoners. The very principle of so many detainees being held in the same dormitory has previously given rise to serious concern on the part of the Court and the Committee for the Prevention of Torture (“the CPT”). Reporting on the conditions of detention in correctional facilities in Eastern Europe, the CPT found, in particular, that high-capacity dormitories frequently accommodated prisoners in extremely cramped and insalubrious conditions and inevitably entailed a lack of privacy for prisoners in their everyday lives (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 137, 17 January 2012, and also the relevant extracts from the CPT reports cited in paragraph 29 above). In cases where the applicants were housed, together with dozens of other inmates, in a dormitory in which they had at their disposal only minimal personal space, the Court has held that the level of privacy available to them was insufficient to satisfy the requirements of Article 3 of the Convention (see Butko v. Russia, no. 32036/10, § 59, 12 November 2015; Yepishin v. Russia, no. 591/07, § 65, 27 June 2013; Kulikov v. Russia, no. 48562/06, § 37, 27 November 2012; Iacov Stanciu v. Romania, no. 35972/05, § 177, 24 July 2012, and Samaras and Others v. Greece, no. 11463/09, §§ 51-66, 28 February 2012). Although the applicant shared his dormitory with fewer inmates than did the applicants in the aforementioned cases, their number was sufficient to cause him additional significant distress.

63. The Court is particularly concerned about the poor quality of the assistance provided by the inmate assigned to help the blind applicant with his everyday needs. It has already found a violation of Article 3 of the Convention in circumstances where prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid (see Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, and Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). It is clear that in the present case the help offered by the applicant’s fellow inmate did not form part of any organised assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. It cannot therefore be considered suitable or sufficient.

64. The applicant’s situation further deteriorated after the release in September 2014 of the inmate who had been helping him. There is no credible evidence to confirm that assistance by other inmates was offered to the applicant but that he refused it. However, even if it were the case, the Court finds the applicant’s refusal to be legitimate (see Semikhvostov, cited above, § 85).

65. Lastly, the Court is particularly concerned that despite the existing legal provision and the conclusion by the medical commission explicitly calling for the applicant’s release on health grounds (see paragraph 17 above), the applicant still remains in detention without any measures having been taken by the Russian authorities to alleviate the suffering he has already had to endure on a daily basis for a number of years.

66. In the light of all circumstances mentioned above, the Court is convinced that the conditions of the applicant’s dentition, exacerbated by his blindness, amount to “inhuman and degrading treatment” within the meaning of the Convention.

67. Accordingly, there has been a violation of Article 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

68. 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

1. Pecuniary damage

69. The applicant claimed 90,000 euros (EUR) in respect of pecuniary damage. He stated that this sum consisted of the amount of his lost wages and the cost of his medical treatment.

70. The Government submitted that the claim was ill-founded.

71. The Court finds that the claim is unsubstantiated and that, in any event, there is no causal link between the violations found and the pecuniary damage alleged.

2. Non-pecuniary damage

72. The applicant claimed EUR 90,000 in respect of non-pecuniary damage.

73. The Government considered that the claim was excessive.

74. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 15,000 in respect of compensation for non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

75. The applicant also claimed EUR 1,750 for legal services incurred in the proceedings before the Court and EUR 450 for postal and other expenses.

76. The Government stressed that the applicant had not provided any evidence in support of his claim to show that those expenses had indeed been incurred.

77. 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. Having received no documents substantiating the applicant’s expenses, such as an agreement with the lawyer, the Court is unable to grant the applicant’s claim. It therefore rejects the claim in full.

C. Default interest

78. 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. Joins the Government’s objection as to the alleged non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 to the merits of his complaint under Article 13 and rejects it;

2. Declares admissible the complaints concerning the conditions of the applicant’s detention in the correctional colony and the alleged absence of an effective domestic remedy in this connection;

3. Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy to complain of inadequate conditions of detention;

4. Holds that there has been a violation of Article 3 of the Convention on account of the inhuman and degrading conditions of the applicant’s detention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on the above amount, to be converted into the national 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 22 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BUTRIN v. RUSSIA - 16179/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 291 (22 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/291.html Cite as: [2016] ECHR 291