KOLGIN v. RUSSIA - 67907/16 (Judgment : Article 3 - Prohibition of torture : Third Section Committee) [2018] ECHR 1027 (18 December 2018)

In the case of Kolgin v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1. The case originated in an application (no. 67907/16) 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 Vyacheslav Vyacheslavovich Kolgin ("the applicant"), on 1 November 2016.

2. The applicant, who had been granted legal aid, was represented by Ms Y. Yefremova, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr M. Galperin, Representative of the Russian Federation with the European Court of Human Rights.

3. On 20 September 2017 the complaints concerning the applicant's conditions of detention and compulsory shaving were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1978 and is serving a prison sentence in Khabarovsk.

5. On 30 July 2004 the Samara Regional Court sentenced the applicant to life imprisonment. On 20 July 2007 the applicant was placed in Correctional Colony No. IK-56.

A. Conditions of detention

1. Description provided by the Government

6. The Government submitted the following information as regards the personal space afforded to the applicant during his detention in the colony:

Cell No.	Period of detention	Cell measurements (sq. m)	Number of inmates
7	From 20 July to 2 August 2007	18	2
No information available. The relevant documents have been destroyed.
10	From 29 October to 26 November 2014	18	2
6	From 26 November 2014 to 2 April 2015	18	2
010	From 2 April 13 December 2015	4	1
6	From 13 to 23 December 2015	18	2
010	From 23 December 2015 to 9 August 2016	4	1
10	From 9 August to 7 September 2016	18	2
010	From 7 September to 26 December 2016	4	1
7	From 26 to 27 December 2016	18	2
10	From 27 December 2016 to 21 July 2017	18	2
3	From 21 July to 3 March 2017	18	2
6	From 3 March 2017 to date	18	2

7. The Government further submitted that from 21 October to 11 November 2009, from 14 to 18 December 2013, and from 5 October to 26 December 2016 the applicant had been detained in Correctional Colony No. IK-55.

2. Description provided by the applicant

8. According to the applicant, the inmates are housed in double or single cells. The double cells measure approximately 18 m² and the single ones approximately 4 m². Since 2007 the applicant has been assigned to different cells, his conditions of detention remaining unchanged.

9. There is no water supply or sewage system on the colony premises. The inmates are given buckets, to compensate for the lack of a toilet, which they have to empty every morning in a cesspool located some two metres away from the recreation area. Each day the inmates receive 10 litres of river water for their personal needs. They are allowed to take a shower once a week.

10. The windows in the cells are covered with three layers of metal bars or screens. The cells are not ventilated. The lighting is dim and inadequate.

11. The food is not fresh, lacks variety and is of poor quality. The milk is often sour, and the fruit juices are diluted with water.

12. The applicant has been housed in single cell no. 10 since 2010. The temperature in the cell does not exceed +12 0 C during the winter. It is damp and stuffy during the summer. He is confined to his cell 22 hours a day and is entitled to one and a half hours' outdoor exercise per day.

13. The recreation area is divided into exercise yards measuring 7 m². The yards are covered with metal bars and screens. There is no exercise equipment.

B. Hair shaving

14. From July 2007 to December 2016 the applicant was not allowed to grow a beard or to have his hair longer than 0.5 cm. His hair was completely shaved off 2 to 4 times a month, and he had to shave his face 2 to 3 times a week.

15. On an unspecified date the applicant complained to the prosecutor about the compulsory shaving.

16. On 13 December 2013 the prosecutor replied that the compulsory shaving of the head and beard to which the applicant had been subjected had been unlawful, and that the prosecutor's office had informed the administration of the correctional colony where the applicant was serving his prison sentence. The prosecutor also informed the applicant of his right to appeal either to a higher-ranking prosecutor or a court. It appears that the applicant took no further action.

II. RELEVANT DOMESTIC LAW AND PRACTICE

17. According to the Internal Regulations of Correctional Facilities in force from November 2005 to December 2016 (Section III, paragraph 14), inmates had to keep their hair, beard and moustache short.

18. According to the Internal Regulations of Correctional Facilities approved by Order No. 295 of the Ministry of Justice of the Russian Federation of 16 December 2016 (Section III, paragraph 16), inmates are allowed to grow their hair up to 20 mm long and have beards up to 9 mm long. For medical reasons, the inmates may be allowed to wear longer moustaches or beards.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19. The applicant complained that his conditions of detention in Correctional Colony No. IK-56 in the Sverdlovsk Region had violated the standards set out in Article 3 of the Convention, which provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

1. The parties' submissions

20. The Government considered that the applicant had introduced his complaint out of time. He had started serving his prison sentence in 2007, and if he considered that his rights under Article 3 of the Convention had been violated at that time, he should not have waited until 2016 to lodge his complaint before the Court. In their opinion, he had already realised in 2007 that his conditions of detention gainsaid that argument. Lastly, the Government argued that the applicant's periods of detention at Correctional Colony No. IK-55 (from 21 October to 11 November 2009, from 14 to 18 December 2013 and from 5 October to 26 December 2016) should be excluded from the assessment.

21. The applicant submitted that since 2012 he had repeatedly complained about his conditions of detention to the administration of the correctional colony and the prosecutor's office, and that only after he had realised that his attempts to have his situation remedied at the domestic level had been futile, had he decided to lodge the complaint with the Court. As regards the applicant's transfers to Correctional Colony No. IK-55, the applicant argued that the transfers had been brief and should not be construed as putting an end to the ongoing situation constituted by his detention in Correctional Colony No. IK-56. In his submissions of 28 February 2018 he confirmed that he had on several occasions been transferred to serve a prison sentence in Correctional Colony No. IK-55 and submitted that his conditions of detention there had been identical to those in Correctional Colony No. IK-56.

2. The Court's assessment

22. In so far as the applicant complained about his conditions of detention in Correctional Colony No. IK-55, the Court observes that the applicant brought the complaint to the attention of the Court in his submissions of 28 February 2018, that is to say over a year after the end of his most recent period of detention in that colony, on 26 December 2016. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

23. As to the applicant's complaint concerning his conditions of detention in Correctional Colony No. IK-56, the Court agrees with the applicant that his detention constitutes an ongoing situation, and that the temporary transfers to another correctional colony had no impact on its nature. As regards the Government's argument that the applicant introduced the complaint out of time, the Court considers that it would indeed have been preferable if the applicant had acted with greater expedition in bringing his case before the Court for examination (see Artyomov v. Russia , no. 14146/02, § 115, 27 May 2010); nevertheless, since his detention constitutes an "ongoing situation" and the Court is not prevented from establishing the facts on account of the amount of time that has already lapsed, his complaint cannot be rejected as belated or manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention (see Dolgov and Silayev v. Russia [Committee], nos. 11215/10and 55068/12, § 23, 4 October 2016).

24. Lastly, the Court notes that the dates mentioned by the Government for the applicant's transfers to Correctional Colony No. IK-55 are erroneous. The Government stated that from 5 October to 26 December 2016 the applicant had been detained in both correctional colonies at the same time. Such a discrepancy, however, has no bearing on the Court's above-mentioned findings in view of the brevity of the period in question. Even assuming that during the latest period indicated the applicant was transferred from Correctional Colony No. IK-56 to Correctional Colony No. IK-55, the Court nonetheless considers that the applicant's detention in Correctional Colony No. IK-56 constituted an ongoing situation.

25. The Court notes that this part of the application concerning the applicant's conditions of detention in Correctional Colony No. IK-56 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

26. The Government submitted that the applicant had been afforded sufficient personal space during his detention, and that the applicant's conditions of detention had been in conformity with Article 3 of the Convention.

27. The applicant maintained his complaint.

28. The Court notes from the outset that, apart from several brief periods totalling no more than three months, the applicant has been detained in cells without water supply or a sewage system since July 2007. In this connection, the Court reiterates that the lack of access to proper sanitary facilities, particularly for such a long period of time and without any hope of improvement in the near future, is in itself sufficient for the finding of a violation of Article 3 of the Convention (see Gorbulya v. Russia , no. 31535/09, § 94, 6 March 2014, in which the applicant was detained in the same correctional colony for almost five years, and Dolgov and Silayev , cited above, § 26, where the second applicant was detained in similar conditions for over twelve years). In the Court's view, such conditions diminish human dignity and arouse feelings of anguish and inferiority in the applicant capable of humiliating and debasing him (compare Kasperovičius v. Lithuania , no. 5487208, §§ 38-39, 20 November 2012). There has accordingly been a violation of Article 3 of the Convention on account of the applicant's conditions of detention in Correctional Colony No. IK-56.

II. ALLEGED VIOLATION OF ARTICLES 3, 8 AND 13 OF THE CONVENTION

29. The applicant complained that from 2007 to 2016 he had been subjected to compulsory hair and beard shaving. He relied on Articles 3 and 8 of the Convention. Articles 8 and 13, in so far as relevant, read as follows:

Article 8

"1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

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."

30. The Government argued that the applicable national legislation at the relevant time had not required all inmates serving a life sentence to be subjected to obligatory shaving of hair or beard. In their view, under those circumstances, before lodging his application with the Court, the applicant should have brought his grievances to the attention of the authorities in charge of the correctional colony or of a court. Accordingly the complaint should be dismissed for the applicant's failure to do so.

31. The applicant submitted that there had been no remedy in respect of his complaint given that the applicable internal regulations had contained an absolute ban on the inmates serving a prison sentence having hair or beards.

32. 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).

33. Turning to the circumstances of the present case, the Court observes that the applicant raised the issue of the mandatory shaving only before a prosecutor, not as a separate complaint to this effect brought, as suggested by the Government, to the attention of a court. However, the prosecutor acknowledged the violation of the applicant's right without offering any redress, and advised him of the right to appeal to a superior prosecutor or a court.

34. 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, in particular overcrowding, 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 discerns no indication that, as suggested by the local prosecutor and the Government, an action lodged with a court would have been ineffective in the circumstances of the applicant's case. Accordingly, the Court does not find any grounds for absolving the applicant from the requirement of exhaustion of domestic remedies as regards the compulsory shaving of his head and beard.

35. It follows that the complaint under Articles 3 and 8 of the Convention must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

36. In so far as the applicant refers to Article 13 of the Convention, the Court, having regard to its conclusion concerning Articles 3 and 8, finds that no separate issue arises under this provision. It finds that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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

38. The applicant claimed 100,000 euros (EUR) in respect of non-�pecuniary damage.

39. The Government submitted that, should the Court decide to find a violation of the applicant's right, it should do so in compliance with the standards developed in its case-law.

40. The Court notes that it has found a violation of Article 3 of the Convention on account of the applicant's conditions of detention. However, having regard to the long delay in filing the application, the Court considers it appropriate to award the applicant EUR 15,000 in respect of non-�pecuniary damage, plus any tax that may be chargeable (compare Dolgov and Silayev , cited above, § 30).

B. Costs and expenses

41. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. The applicant's representative had spent 20 hours working on the case at the hourly rate of 150 euros. In particular, she had studied the case-file (five hours), exchanged correspondence with the applicant (two hours) and, following the communication of the case, had reviewed domestic and international case-law and drafted the observations (13 hours).

42. The Government submitted that the applicant had not submitted any documents to substantiate his claims and that, in any event, the case could not have generated the amount of work claimed by the applicant.

43. Regard being had to the documents in its possession and to its case-�law and taking into account that the legal aid had been paid to the applicant, the Court rejects the remainder of the claims for costs and expenses.

C. Default interest

44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the applicant's conditions of detention admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President

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