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FIRST
SECTION
CASE OF FETISOV and OTHERS v. RUSSIA
(Applications
nos. 43710/07, 6023/08, 11248/08, 27668/08,
31242/08
and 52133/08)
JUDGMENT
STRASBOURG
17
January 2012
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 Fetisov and Others
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in six applications (nos. 43710/07,
6023/08, 11248/08, 27668/08, 31242/08 and 52133/08)
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 six
applicants whose names are listed below.
- The
applicants Mr Fetisov, Mr Telyubayev, Mr Savinor, Mr Shakurov and
Mr Korobeynikov were represented by Ms O. Preobrazhenskaya and
Mr P. Finogenov, lawyers practising in Strasbourg and
Moscow. The applicant Mr Fetisov was granted legal aid for his
representation before the Court.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicants alleged, in particular, that they had been detained in
inhuman and degrading conditions and that they had not had effective
domestic remedies at their disposal.
- On
14 May 2009 the Court
decided to give notice of the applications to the Government.
It also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- All
the applicants were held in various Russian remand prisons at some
point in time. Their individual circumstances are detailed below.
A. Application no. 43710/07 lodged on 17 July 2007
- The
applicant in case no. 43710/07, Mr Andrey Anatolyevich Fetisov,
is a Russian national who was born in 1967.
- On
22 August 2006 Mr Fetisov was arrested on suspicion of
drug trafficking. Following a period of initial detention at the
Gukovo town police ward (изолятор
временного
содержания
г. Гуково),
on 30 August 2006 he was transferred to remand prison IZ-61/3 of
Novocherkassk in the Rostov Region. On various dates between
9 October and 12 December 2006 Mr Fetisov effected further
short stays in the Gukovo ward.
- On
20 March 2007 Mr Fetisov was found guilty of drug-trafficking at last
instance and sentenced to nine years’ imprisonment. On 17 May
2007 he left the remand prison for transfer to a correctional colony.
- In
prison IZ-61/3, Mr Fetisov stayed the first night in cell 168, one
week in cell 181, and subsequently in cells 245 (after 28 September
2006) and 291 (after 12 December 2006). The last two cells measured
19 and 34 square metres, respectively.
- The
parties disagreed on the number of sleeping places and detainees.
According to the Government, cell 245 had four places, and cells 181
and 291 eight places each. Mr Fetisov submitted that all the cells
had twice as many places.
- In
the Government’s submission, cell 245 accommodated “up to
four persons”, and cells 181 and 291 – “up to eight
persons”. Mr Fetisov asserted that cell 245 housed up to twenty
inmates and cell 291 up to twenty-five.
- The
Government produced in evidence certificates showing the number of
beds and detainees, issued by the prison governor on 29 June 2009,
and three pages from the prison population register. The extracts
show that on 20 September 2006 an eight-person cell 181 accommodated
eight inmates, that on 28 September 2006 a four-person cell 245
housed four inmates, and that on 13 December 2006 an eight-person
cell 291 held eight detainees. It does not appear that the design
capacity was exceeded in any other cells within the prison on those
dates.
- Mr
Fetisov submitted eight written statements from his co-detainees
dated 19 October and 7 November 2007. Each of them stated that he had
been detained in cell 291 together with Mr Fetisov and that the cell
had measured approximately 40 square metres, had been equipped with
16 beds and had actually accommodated 20 to 25 prisoners. There had
been no ventilation and frequent interruptions of the water supply.
Further to the Court’s request, the Government produced the
cell records for those individuals from which it appears that six of
them had shared cell 291 with Mr Fetisov from 12 December 2006
until January or February 2007, the seventh inmate from 26 December
2006 to 22 March 2007, and the eighth person from 22 April to 17 May
2007.
B. Application no. 6023/08 lodged on 3 January
2008
- The
applicant in case no. 6023/08, Mr Valeriy Viktorovich Savinov,
is a Russian national who was born in 1957.
- On
4 February 2006 Mr Savinov was arrested on a charge of kidnapping and
placed in a temporary detention ward in Kazan. On 13 February
2006 he was transferred to remand prison IZ-16/1 of Kazan in the
Tatarstan Republic.
- In
prison IZ-16/1, Mr Savinov stayed in cells 7 (until 12 April 2006),
15 (until 25 September 2006), 5 (until 2 October 2006), 11 (until 9
October 2006), 8 (until 11 February 2007), and 68 (until 20 August
2007). On the latter date he was transferred to a prison in Moscow.
On 11 October 2007 Mr Savinov was convicted at last instance and
subsequently sent to serve his sentence in a correctional colony.
- The
cells presented the following characteristics:
cell 7: 40 square
metres and 10 sleeping places;
cell 15: 25 square
metres and 6 sleeping places;
cells 5 and 11: 20
square metres and 5 sleeping places;
cells 8 and 68: 16
square metres and 4 sleeping places.
- The
parties disagreed on the number of detainees who had been held
together with Mr Savinov.
- The
Government submitted that “the number of detainees had not
exceeded the number of beds”, relying on the certificates
issued by the prison governor on 29 June 2009. They also produced
four statements by prison warders (two undated and the other two
dated 24 June 2009), according to which Mr Savinov had had a personal
sleeping place and bed linen, and fourteen statements by detainees,
including Mr P. (all dated 24 June 2009) who had been held in
cells 5, 7, 8, 11, 15, 67 and 68 during various periods of time in
2008 and 2009. Finally, they enclosed extracts from the prison
population register of prison IZ-16/1, covering one day per month in
the period from February 2006 to January 2008. The extracts showed
that during the respective periods of Mr Savinov’s stay,
cell 7 housed 8 to 10 persons, cell 15 – 5 or 6 persons, cells
5 and 11 – 5 persons, cells 8 and 68 – 3 or 4 persons,
and that the total prison population had varied but never exceeded
586 persons.
- Mr
Savinov claimed that the Government had falsified the documents
concerning the number of detainees. He prayed in aid an article,
entitled The Kazan Jailhouse: the Past and the Present,
published in Issue 10, October 2006, of Crime and Punishment,
a magazine of the Federal Penitentiary Service. The relevant extracts
read as follows:
“Prison no. [IZ-16/]1 with a design capacity
of 600 persons currently houses 780 suspects and defendants. Thus,
the overcrowding is still significant...
Renovation and construction works are in full swing. In
January 2005 a new wing with 120 places was put in operation... The
conditions are fully compatible with European standards: wooden
floors in cells, mirrors above sinks, isolated toilets, radios, TV
sets, shower stalls on each floor. This wing... accommodates underage
detainees...” (page 51)
- Mr
Savinov listed the names (five full names and two first names) of the
co-detainees, including Mr P., with whom he stayed in cell 68 from
26 November 2007 to 28 January 2008. He submitted that he had
shared the bed with Mr P. on the second tier of the bunk beds.
Further to the Court’s request for information, the Government
submitted cell records in respect of five inmates whose full names
were listed. It appears that only three of them had actually shared
cell 68 with Mr Savinov. The first names of the remaining two
detainees were insufficient for reliable identification.
C. Application no. 11248/08 lodged on 4 February
2008
- The
applicant in case no. 11248/08, Mr Amangeldy Sebepovich
Telyubayev, is a Russian national who was born in 1977.
- On
29 May 2002, 19 May and 6 June 2005 the Sol-Iletskiy District Court
of the Orenburg Region convicted Mr Telyubayev of various crimes and
sentenced him to imprisonment. In 2007 Mr Telyubayev petitioned the
Orenburg Regional Court for supervisory review of the judgment of 29
May 2002. In order to take part in the supervisory review hearing on
27 August 2007, he was taken from the correctional colony where
he was serving his sentence. Before reaching his destination, Mr
Telyubayev transited through several remand prisons.
- From
10 to 12 August and then from 12 to 15 September 2007 Mr Telyubayev
was accommodated in cell 203 in remand prison IZ-66/1 of
Yekaterinburg. The cell measured 33 square metres and was equipped
with 16 sleeping places. The cell population varied from 3 to 12
inmates.
- From
13 to 17 August and then from 7 to 11 September 2007 Mr Telyubayev
was held in cell 116 in remand prison IZ-74/3 of Chelyabinsk. Cell
116 was designed for four inmates and had 16 square metres of floor
space. The parties disagreed on the number of detainees in cell 116.
According to the Government, there were four persons; Mr Telyubayev
maintained that the actual number was as high as ten.
- Finally,
between 18 August and 6 September 2007, Mr Telyubayev had to
stay in cell 59 in remand prison IZ-56/1 of Orenburg. It was
16 square metres in size with eight sleeping places and
accommodated three to seven detainees.
- The
Government submitted certificates issued by the governors of prisons
in Yekaterinburg, Chelyabinsk and Orenburg on 25 and 29 June 2009
listing the cells in which Mr Telyubayev had been held,
statements by warders of the Yekaterinburg prison who asserted that
Mr Telyubayev had been assigned his personal sleeping place, and
extracts from the registers for verification of the number of
detainees in prisons 66/1 (Yekaterinburg), 74/3 (Chelyabinsk) and
56/1 (Orenburg).
- The
extracts from the register of prison 74/3 cover the dates from 7 to
11 September 2007 and show that cell 116 had four places and housed
as many detainees. Some extracts from the register of prison 66/1
relate to an earlier period of Mr Telyubayev’s stay in
2005 and at that time cell 203 had accommodated on average thirty
prisoners. However, the entries relating to various dates in August
and September 2007 indicated that the design capacity of cell 203 had
not been exceeded and ranged from 3 to 12 inmates. Finally, the
extracts of 27 August and 6 September 2007 from the register of
prison 56/1 indicated the population of cell 59 as five and six
persons, respectively.
D. Application no. 27668/08 lodged on 5 April 2008
- The
applicant in case no. 27668/08, Mr Rail Kurbanovich Shakurov, is
a Russian national who was born in 1970.
- On
31 August 2007 Mr Shakurov was taken into custody. On 10 September
2007 he was placed in remand prison IZ-16/1 of Kazan.
- In
prison IZ-16/1, Mr Shakurov stayed in cells 127 (the first night), 3
(from 11 September to 22 October 2007 and from 14 May to 17 November
2008), 21 (from 22 October 2007 to 14 May 2008), 40 (from 17 November
to 31 December 2008 and from 30 January to 16 April 2009), 66
(from 31 December 2008 to 30 January 2009), and 44 (from 16
April 2009 until at least June 2009).
- The
parties disagreed on the measurements of some cells and on the number
of detainees who had been held together with Mr Shakurov.
- According
to the Government, the cells presented the following characteristics:
cell 127: 65 square
metres and 16 sleeping places;
cell 3: 40 square
metres and 10 sleeping places;
cells 21, 40, 44 and
66: 16 square metres and 4 sleeping places.
- The
Government indicated that the design capacity of the cells had never
been exceeded, relying on the certificates established by the prison
governor on 29 June 2009. They also produced four statements by
prison warders (dated 24 June and 17 July 2009), according to which
Mr Shakurov had had a personal sleeping place and bed linen, and two
statements by detainees (dated 24 June 2009) who had been held in
cell 66 since April 2009. Finally, they enclosed extracts from the
prison population register for prison IZ-16/1, covering several days
per month in the period from September 2007 to March 2009. The
extracts showed that during the respective periods of Mr Shakurov’s
stay, cell 3 housed 7 to 10 persons and cells 21, 40 and 44 housed 4
persons. The Government produced photographs of the cells and the
shower room, from which it appears that they were in a good state of
repair. In response to the Court’s request for information,
they submitted floor plans of the facility, which confirmed the
accuracy of the cell surface area as they had given it.
- In
Mr Shakurov’s submission, cells 66 and 44 measured only
4.8 sq. m. He produced hand-written lists of individuals
who were detained in the same cell with him. The lists contained
their full names, dates of birth and their signatures. The lists show
that:
from 10 to 13
October 2008, cell 3 housed 18 inmates;
from 17 to 20
October 2008, cell 3 housed 18 inmates;
from 24 to 27
October 2008, cell 3 housed 20 inmates;
from 2 to 5 November
2008, cell 3 housed 18 inmates.
from 17 to 20
November 2008, cell 40 housed 4 inmates;
from 1 to 15 January
2009, cell 66 housed 4 inmates;
from 17 April to 4
May 2009, cell 44 housed 4 inmates.
- Further
to the Court’s request, the Government submitted cell records
for the individuals named in Mr Shakurov’s lists. It can be
seen from the records that as many as eight or ten persons whom Mr
Shakurov had listed as his co-detainees in cell 3 had actually been
held in other cells.
- On
18 April 2011 Mr Shakurov complained to the Court that the prison
authorities had opened and stamped the Court’s letter of 14
February 2011. He enclosed a copy of the letter bearing the prison
stamp dated 1 March 2011. In his view, tampering with his
correspondence amounted to a violation of his right of individual
petition under Article 34 of the Convention.
- In a letter of 23 June 2011 sent in response to the
Court’s request for comments, the Government acknowledged that
the Court’s letter of 14 February 2011 had been opened in
prison IZ-16/1. They pointed out that an inquiry had identified the
officials responsible for the opening and enclosed the order of the
acting prison governor of 6 June 2011. The order shows that the
letter was opened and stamped by Major A.Kh., the head of the
correspondence unit, who thus breached the requirements of the
Federal Penitentiary Service’s circular letter of 17 December
2010 in the part concerning the timely delivery of the Court’s
letters to detainees in closed envelopes. The acting prison governor
issued a disciplinary warning to Lieutenant-Colonel R.Kh., his deputy
for human resources. In respect of Major A.Kh., it was decided “to
maintain the warning that had been previously imposed by an order of
25 October 2010”.
E. Application no. 31242/08 lodged on 4 May 2008
- The
applicant in case no. 31242/08, Mr Anatoliy Ivanovich
Korobeynikov, is a Russian national who was born in 1953.
- On
29 November 2006 Mr Korobeynikov was placed in remand prison IZ-48/1
of Lipetsk. On 20 November 2007 he was convicted at last instance and
was transferred, ten days later, to a correctional colony in the
Lipetsk Region.
- In
prison IZ-48/1, Mr Korobeynikov stayed in cell 4 (from 29 November
to 7 December 2006), cell 161 (from 7 to 12 December 2006), cell 190
(from 12 December 2006 to 18 January 2007), cell 157 (from 18 January
to 31 May 2007), cell 144 (from 31 May to 19 June 2007), cell 141
(from 19 to 27 June 2007), and cell 176 (from 27 June to 30 November
2007).
- According
to the Government, the cells presented the following characteristics:
cell 4: 48 square
metres and 12 sleeping places;
cells 161, 190 and
157: 12 square metres and 3 sleeping places;
cells 144, 141 and
176: 16 square metres and 4 sleeping places.
- The
applicant gave the same number of sleeping places but claimed that
the cells had been much smaller. Thus, in his submission, cell 4
measured only 20 sq. m, cell 157 – 9 sq. m, and cells 144, 141
and 176 – approximately 10 sq. m.
- The
parties agreed that the number of detainees did not exceed the number
of sleeping places. In support of their submissions, the Government
produced certificates issued by the prison governor on 22 June 2009.
Subsequently, the Government also submitted floor plans of the
facility, which corroborated their indications of the cell surface
areas.
F. Application no. 52133/08 lodged on 5 August
2008
- The
applicant in case no. 52133/08, Mr Khamil Kamil oglu Balammedov,
is a stateless person who was born in 1962 in the Azerbaijan SSR.
- On
17 January 2007 Mr Balammedov was taken into custody and placed in
remand prison IZ-47/6 of St Petersburg. On 3 April 2008 he was
convicted at last instance and subsequently transferred to a
correctional colony in the Yamalo-Nenets Region.
- In
prison IZ-47/6, Mr Balammedov stayed in cell 1/2 (from 21 February
to 4 July 2007), cell 3/11 (from 4 to 30 July 2007), cell 1/3
(from 30 July to 16 January 2008), cell 403 (from 16 January to
19 April 2008), and cell 419 (from 19 April to 17 May 2008).
- According
to the Government, the cells presented the following characteristics:
cells 1/2 and 1/3:
396 square metres and 99 sleeping places;
cell 3/11: 81 square
metres and 20 sleeping places;
cells 403 and 419:
25 square metres and 4 sleeping places.
- Mr
Balammedov claimed that cell 1/3 actually measured 25 by 7 metres,
that is 175 square metres, and accommodated 140 to 160 inmates who
had slept in turns. He pointed out that, judging from the number of
detainees in the prison (1,342) and the sanitary norm of 4 square
metres per inmate, the total prison surface should have been no less
than 5,368 square metres; however, the cleaning contracts submitted
by the Government referred to a much smaller area of 1,500 square
metres.
- Further
to the Court’s request for information, the Government produced
floor plans of the facility, which corroborated their indications of
the cell surface.
- The
Government submitted certificates issued by the prison governor on 25
June 2009, and undated statements by prison warders who stated that
Mr Balammedov had at all times had a personal sleeping place and
that the cell population had been as follows:
cell 1/2 housed 78
to 99 persons;
cell 3/11 – 17
to 20 persons;
cell 1/3 – 81
to 99 persons;
cell 419 – 2
to 4 persons.
- The
Government also produced five pages from the prison population
register for prison IZ-74/6, covering dates in March, August,
September and November 2007. The extracts indicated that cells 1/2
and 1/3 accommodated no more than 97 inmates. Mr Balammedov
replied that the extracts covered the dates when the overcrowding had
been the least severe.
- Cells
1/2 and 1/3 featured separate toilet rooms equipped with four and
five pans and four and five sinks, respectively. In cells 3/11, 403
and 419 the toilet pan was separated from the living area by a brick
partition 1.2 metres high.
- The
exercise yards of the first wing (cells 1/2 and 1/3) measured 700 sq.
m and were equipped with benches, pavilions and sheds. Those in the
third wing (cell 3/11) ranged from 30 to 60 sq. m in size, and those
in the fourth wing (cells 409 and 419) from 8 to 20 sq. m.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
- Personal
dignity is protected by the State and may not be undermined for any
reason (Article 21 § 1).
No
one may be subject to torture, violence or any other cruel or
degrading treatment or punishment (Article 21 § 2).
B. Pre-trial Detention Act (Federal Law no. 103 FZ
of 15 July 1995)
- Detention on remand must be based on the principles of
lawfulness, fairness, presumption of innocence, equality before the
law, humanism, respect for human dignity and must be carried out in
accordance with the Russian Constitution, international legal
principles and norms and international treaties, to which Russia is a
party, and must not involve torture or other actions that purport to
cause physical or moral suffering to the suspect or defendant
(section 4).
- Detainees
should be kept in conditions which satisfy health and hygiene
requirements. They should be provided with an individual sleeping
place and given bedding, tableware and toiletries. Each inmate should
dispose of no less than four square metres of personal space in his
or her cell (section 23).
C. Civil Code
- If
certain actions impairing an individual’s personal non-property
rights or encroaching on other intangible assets have caused him or
her non pecuniary damage (physical or mental suffering), the
court may impose on the perpetrator an obligation to pay pecuniary
compensation for that damage. The amount of compensation is
determined by reference to the gravity of the perpetrator’s
fault and other significant circumstances. The court also takes into
account the extent of physical or mental suffering in relation to the
victim’s individual characteristics (Article 151).
- State
and municipal bodies and officials shall be liable for damage caused
to a citizen by their unlawful actions or omissions (Article 1069).
Irrespective of any fault by State officials, the State or regional
treasury are liable for damage sustained by a citizen on account of
(i) unlawful criminal conviction or prosecution; (ii) unlawful
application of a preventive measure, and (iii) unlawful
administrative punishment (Article 1070).
- Compensation
for non-pecuniary damage is effected in accordance with Article 151
of the Civil Code and is unrelated to any award in respect of
pecuniary damage (Article 1099). Irrespective of the tortfeasor’s
fault, non-pecuniary damage shall be compensated for if the damage
was caused (i) by a hazardous device; (ii) in the event of unlawful
conviction or prosecution or unlawful application of a preventive
measure or unlawful administrative punishment, and (iii) through
dissemination of information which was damaging to honour, dignity or
reputation (Article 1100).
D. Code of Civil Procedure: Complaints about unlawful
decisions
- Chapter 25 sets out the procedure for a judicial
examination of complaints about decisions, acts or omissions of the
State and municipal authorities and officials. Pursuant to Ruling
no. 2 of 10 February 2009 by the Plenary Supreme Court of the
Russian Federation, complaints by suspects, defendants and convicts
about inappropriate conditions of detention must be examined in
accordance with the provisions of Chapter 25 (point 7).
- A
citizen may lodge a complaint about an act or decision by any State
authority which he believes has breached his rights or freedoms,
either with a court of general jurisdiction or by sending it to the
directly higher official or authority (Article 254). The complaint
may concern any decision, act or omission which has violated rights
or freedoms, has impeded the exercise of rights or freedoms, or has
imposed a duty or liability on the citizen (Article 255).
- If
the court finds the complaint justified, it issues a decision
requiring the authority or official to fully remedy the breach of the
citizen’s rights (Article 258 § 1). The court
determines the time-limit for remedying the violation with regard to
the nature of the complaint and the efforts that need to be deployed
to remedy the violation in full (point 28 of Ruling no. 2).
III. RELEVANT INTERNATIONAL MATERIAL
- The Standard Minimum Rules for the Treatment of
Prisoners, adopted by the First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, held at Geneva in
1955, and approved by the Economic and Social Council by its
resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May
1977, provide, in particular, as follows:
“10. All accommodation provided for the
use of prisoners and in particular all sleeping accommodation shall
meet all requirements of health, due regard being paid to climatic
conditions and particularly to cubic content of air, minimum floor
space, lighting, heating and ventilation...
11. In all places where prisoners are
required to live or work,
(a) The windows shall be large enough to
enable the prisoners to read or work by natural light, and shall be
so constructed that they can allow the entrance of fresh air whether
or not there is artificial ventilation;
(b) Artificial light shall be provided
sufficient for the prisoners to read or work without injury to
eyesight.
12. The sanitary installations shall be
adequate to enable every prisoner to comply with the needs of nature
when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations
shall be provided so that every prisoner may be enabled and required
to have a bath or shower, at a temperature suitable to the climate,
as frequently as necessary for general hygiene according to season
and geographical region, but at least once a week in a temperate
climate.
14. All pans of an institution regularly used
by prisoners shall be properly maintained and kept scrupulously clean
at all time.
15. Prisoners shall be required to keep their
persons clean, and to this end they shall be provided with water and
with such toilet articles as are necessary for health and
cleanliness...
19. Every prisoner shall, in accordance with
local or national standards, be provided with a separate bed, and
with separate and sufficient bedding which shall be clean when
issued, kept in good order and changed often enough to ensure its
cleanliness...”
- On 11 January 2006 the Committee of Ministers of the
Council of Europe adopted Recommendation Rec(2006)2 to member States
on the European Prison Rules, which replaced Recommendation No. R
(87) 3 on the European Prison Rules accounting for the developments
which had occurred in penal policy, sentencing practice and the
overall management of prisons in Europe. The amended European Prison
Rules lay down the following guidelines:
“1. All persons deprived of their
liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain
all rights that are not lawfully taken away by the decision
sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of
their liberty shall be the minimum necessary and proportionate to the
legitimate objective for which they are imposed.
4. Prison conditions that infringe prisoners’
human rights are not justified by lack of resources.
...
10.1. The European Prison Rules apply to
persons who have been remanded in custody by a judicial authority or
who have been deprived of their liberty following conviction.”
Allocation and accommodation
“18.1. The accommodation provided for
prisoners, and in particular all sleeping accommodation, shall
respect human dignity and, as far as possible, privacy, and meet the
requirements of health and hygiene, due regard being paid to climatic
conditions and especially to floor space, cubic content of air,
lighting, heating and ventilation.
18.2. In all buildings where prisoners are
required to live, work or congregate:
a. the windows shall be large enough to
enable the prisoners to read or work by natural light in normal
conditions and shall allow the entrance of fresh air except where
there is an adequate air conditioning system;
b. artificial light shall satisfy recognised
technical standards; and
c. there shall be an alarm system that
enables prisoners to contact the staff without delay.
18.4. National law shall provide mechanisms
for ensuring that these minimum requirements are not breached by the
overcrowding of prisons.
18.5. Prisoners shall normally be
accommodated during the night in individual cells except where it is
preferable for them to share sleeping accommodation.
19.3. Prisoners shall have ready access to
sanitary facilities that are hygienic and respect privacy.
19.4. Adequate facilities shall be provided
so that every prisoner may have a bath or shower, at a temperature
suitable to the climate, if possible daily but at least twice a week
(or more frequently if necessary) in the interest of general hygiene.
27.1. Every prisoner shall be provided with
the opportunity of at least one hour of exercise every day in the
open air, if the weather permits.
27.2. When the weather is inclement
alternative arrangements shall be made to allow prisoners to
exercise.”
- The relevant extracts from the General Reports
prepared by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
“46. Overcrowding is an issue of direct
relevance to the CPT’s mandate. All the services and activities
within a prison will be adversely affected if it is required to cater
for more prisoners than it was designed to accommodate; the overall
quality of life in the establishment will be lowered, perhaps
significantly. Moreover, the level of overcrowding in a prison, or in
a particular part of it, might be such as to be in itself inhuman or
degrading from a physical standpoint...
49. Ready access to proper toilet facilities
and the maintenance of good standards of hygiene are essential
components of a humane environment...
50. The CPT would add that it is particularly
concerned when it finds a combination of overcrowding, poor regime
activities and inadequate access to toilet/washing facilities in the
same establishment. The cumulative effect of such conditions can
prove extremely detrimental to prisoners...”
Extracts from the 7th General Report [CPT/Inf (97)
10]
“13. As the CPT pointed out in its 2nd
General Report, prison overcrowding is an issue of direct relevance
to the Committee’s mandate (cf. CPT/Inf (92) 3,
paragraph 46). An overcrowded prison entails cramped and
unhygienic accommodation; a constant lack of privacy (even when
performing such basic tasks as using a sanitary facility); reduced
out-of-cell activities, due to demand outstripping the staff and
facilities available; overburdened health-care services; increased
tension and hence more violence between prisoners and between
prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one
occasion that the adverse effects of overcrowding have resulted in
inhuman and degrading conditions of detention...”
Extracts from the 11th General Report [CPT/Inf (2001)
16]
“28. The phenomenon of prison
overcrowding continues to blight penitentiary systems across Europe
and seriously undermines attempts to improve conditions of detention.
The negative effects of prison overcrowding have already been
highlighted in previous General Reports...
29. In a number of countries visited by the
CPT, particularly in central and eastern Europe, inmate accommodation
often consists of large capacity dormitories which contain all or
most of the facilities used by prisoners on a daily basis, such as
sleeping and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation arrangements
in closed prisons and those objections are reinforced when, as is
frequently the case, the dormitories in question are found to hold
prisoners under extremely cramped and insalubrious conditions...
Large-capacity dormitories inevitably imply a lack of privacy for
prisoners in their everyday lives... All these problems are
exacerbated when the numbers held go beyond a reasonable occupancy
level; further, in such a situation the excessive burden on communal
facilities such as washbasins or lavatories and the insufficient
ventilation for so many persons will often lead to deplorable
conditions.
30. The CPT frequently encounters devices,
such as metal shutters, slats, or plates fitted to cell windows,
which deprive prisoners of access to natural light and prevent fresh
air from entering the accommodation. They are a particularly common
feature of establishments holding pre-trial prisoners. The CPT fully
accepts that specific security measures designed to prevent the risk
of collusion and/or criminal activities may well be required in
respect of certain prisoners... [E]ven when such measures are
required, they should never involve depriving the prisoners concerned
of natural light and fresh air. The latter are basic elements of life
which every prisoner is entitled to enjoy...”
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court notes at the outset that all the applicants complained about
the allegedly inhuman conditions of their detention in Russian
detention facilities and that some of them additionally complained
about the absence of an effective domestic remedy in that connection.
Having regard to the similarity of the applicants’ grievances,
the Court is of the view that, in the interests of the proper
administration of justice, the applications should be joined in
accordance with Rule 42 § 1 of the Rules of Court.
II. ADMISSIBILITY
A. The applicants’ complaints concerning their
conditions of detention and the alleged absence of an effective
domestic remedy
- The
Court will begin its examination with a verification of whether or
not the admissibility criteria in Article 35 of the Convention have
been met in each individual case. Paragraph 1 of Article 35 provides
as follows:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.”
1. Exhaustion of domestic remedies
- The
Government submitted that the applicants had not exhausted the
domestic remedies because they had not applied to Russian courts with
claims for compensation in respect of non-pecuniary damage in
connection with the allegedly inhuman conditions of their detention.
The procedure for making claims was established in Chapter 25 of the
Code of Civil Procedure, as clarified by the Supreme Court’s
Ruling no. 2 of 10 February 2009. Articles 151 and 1069 allowed
individuals to claim compensation for non-pecuniary damage caused by
unlawful actions of State authorities. The Government further pointed
out that the prosecutors had competence to review compliance with
laws in penitentiary institutions. They carried out monthly
inspections of remand prisons, during which they checked in
particular the conditions of detention and medical assistance. In the
Government’s view, such inspections were an effective remedy
capable of preventing breaches of law and putting an end to them.
This remedy was accessible to everyone who was held in custody.
However, a majority of the applicants did not apply to a prosecutor.
- The
Court considers that the issue of exhaustion of domestic remedies is
closely linked to the merits of the applicants’ complaint that
they did not have at their disposal an effective remedy for
complaining about inhuman conditions of detention. Thus, the Court
finds it necessary to join the Government’s objection to the
merits of the complaint under Article 13 of the Convention
(compare Benediktov v. Russia, no. 106/02, § 25,
10 May 2007).
2. Compliance with the six-month time-limit
- The
Court reiterates that, in contrast to an objection as to the
non-exhaustion of domestic remedies, which must be raised by the
respondent Government, it cannot set aside the application of the
six-month rule solely because a government have not made a
preliminary objection to that effect (see Maltabar and Maltabar
v. Russia, no. 6954/02, § 80, 29 January
2009; Walker v. the United Kingdom (dec.), no. 34979/97,
ECHR 2000-I; and also Blečić v. Croatia [GC],
no. 59532/00, § 68, ECHR 2006-...).
- As
a rule, the six-month period runs from the date of the final decision
in the process of exhaustion of domestic remedies. Where no effective
remedy is available to the applicant, the period runs from the date
of the acts or measures complained of, or from the date of the
knowledge of that act or its effect on or prejudice to the applicant
(see Dennis and Others v. the United Kingdom (dec.),
no. 76573/01, 2 July 2002). In cases featuring a continuing
situation, the six-month period runs from the cessation of that
situation (see Seleznev v. Russia, no. 15591/03,
§ 34, 26 June 2008, and Koval v. Ukraine
(dec.), no. 65550/01, 30 March 2004).
- The
Court observes that a majority of the applicants in the instant case
spent the entire period of their detention in the same remand prison
and that there were no appreciable variations in the conditions of
their detention or interruptions during that period. As they
introduced their complaints within six months of the end of their
respective detention periods, they have complied with the six-month
criterion. On the other hand, the cases of Mr Fetisov requires
particular attention on the part of the Court in terms of compliance
with the six-month rule. The applicant Mr Fetisov spent the initial
period of his detention in two facilities: his stay in the remand
prison was punctuated with short stays in the police ward. The
question to be resolved is whether or not the whole period of Mr
Fetisov’s custody in two different facilities constituted a
“continuing situation”.
- 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 Nevmerzgitskiy v. Ukraine
(dec.), no. 58825/00, 25 November 2003, where the applicant was
subjected to force-feeding, and Tarariyeva v. Russia
(dec.), no. 4353/03, 11 October 2005, where the applicant’s
son was denied medical assistance). However, in the event of a
repetition of the same events, such as an applicant’s transport
between the remand prison and the courthouse, even though the
applicant was transported on specific days rather than continuously,
the absence of any marked variation in the conditions of transport to
which he had been routinely subjected created, in the Court’s
view, a “continuing situation” which brought the entire
period complained of within the Court’s competence (see Vlasov
v. Russia (dec.), no. 78146/01, 14 February 2006, and
Moiseyev v. Russia (dec.), no. 62936/00, 9 December
2004). Similarly, in a situation where the applicant’s
detention in the police ward was not continuous but occurred at
regular intervals when he was brought there for an interview with the
investigator or other procedural acts, the Court accepted that in the
absence of any material change in the conditions of his detention,
the breaking-up of his detention into several periods was not
justified (see Nedayborshch v. Russia, no. 42255/04,
§ 25, 1 July 2010). In another case, the applicant’s
absence from the detention facility for carrying out a certain
procedural act did not prevent the Court from recognising the
continuous nature of his detention in that facility (see Romanov
v. Russia, no. 63993/00, § 73, 20 October
2005, where the applicant spent one month out of the remand prison in
a psychiatric institution). Nevertheless, where an applicant was
released but subsequently re-detained, the Court limited the scope of
its examination to the later period (see Belashev v. Russia,
no. 28617/03, § 48, 4 December 2008; Grishin
v. Russia, no. 30983/02, § 83, 15 November
2007; and Dvoynykh v. Ukraine, no. 72277/01, § 46,
12 October 2006).
- An
applicant’s detention in the domestic system is rarely effected
within the confines of the same facility: usually he or she would
spend a few first days in the police custody, move later to a remand
prison during the investigation and trial and, if convicted, begin to
serve the sentence in a correctional colony. Different types of
detention facilities have different purposes and vary accordingly in
the material conditions they can offer. Thus, temporary detention
wings located inside police stations are designed for short-term
custody only and often lack the amenities indispensable for prolonged
detention, such as a toilet, sink, or exercise yard (see for example
Shchebet v. Russia, no. 16074/07, § 89, 12 June
2008), whereas in correctional colonies – in contrast to remand
prisons – the restricted space in the dormitories is
compensated for by the freedom of movement enjoyed by the detainees
during the day-time (see Nurmagomedov v. Russia (dec.),
no. 30138/02, 16 September 2004). The difference in material
conditions of detention creates the presumption that an applicant’s
transfer to a different type of facility would require the submission
of a separate complaint about the conditions of detention in the
previous facility within six months of such transfer (see Volchkov
v. Russia, no. 45196/04, § 27, 14 October
2010; Gultyayeva v. Russia, no. 67413/01, § 148,
1 April 2010; Maltabar, cited above, §§ 82-84;
and Nurmagomedov (dec.), cited above). Only in a few
exceptional cases, having regard to the allegation of severe
overcrowding as the main characteristic of the detention conditions
in both facilities, has the Court recognised the existence of a
“continuous situation” encompassing the applicant’s
stay both in police custody and in the remand prison (see Lutokhin
v. Russia, no. 12008/03, §§ 40-42, 8
April 2010; Seleznev, cited above § 36,
26 June 2008; and Guliyev v. Russia, no. 24650/02,
§ 33, 19 June 2008).
- As
long as the applicant stays within the same type of detention
facility and provided the material conditions have remained
substantially the same, it matters not that he or she was transferred
between cells or wings within the same remand prison (see Trepashkin
v. Russia (no. 2), no. 14248/05, §§ 108-109,
16 December 2010, and Nazarov v. Russia, no. 13591/05,
§ 78, 26 November 2009), from one remand prison to another
within the same region (see Romokhov v. Russia,
no. 4532/04, § 74, 16 December 2010; Mukhutdinov
v. Russia, no. 13173/02, § 77, 10 June 2010;
Goroshchenya v. Russia, no. 38711/03, § 62,
22 April 2010; and Benediktov, cited above, § 31, 10
May 2007) or even to a remand prison in a different region (see
Aleksandr Matveyev v. Russia, no. 14797/02, § 67,
8 July 2010, and Buzhinayev v. Russia, no. 17679/03,
§ 23, 15 October 2009). Nevertheless, a significant change
in the detention regime, even where it occurs within the same
facility, has been held by the Court to put an end to the “continuous
situation” as described above and the six-month time-limit
would thus be calculated from that moment: this would be the case for
instance where the applicant has moved from a communal cell to
solitary confinement (see Zakharkin v. Russia,
no. 1555/04, § 115, 10 June 2010) or from an ordinary
cell to the hospital wing.
- The
Court’s approach to the application of the six-month rule to
complaints concerning the conditions of an applicant’s
detention may therefore be summarised in the following manner: a
period of an applicant’s detention should be regarded as a
“continuing situation” as long as the detention has been
effected in the same type of detention facility in substantially
similar conditions. Short periods of absence during which the
applicant was taken out of the facility for interviews or other
procedural acts would have no incidence on the continuous nature of
the detention. However, the applicant’s release or transfer to
a different type of detention regime, both within and outside the
facility, would put an end to the “continuing situation”.
The complaint about the conditions of detention must be filed within
six months from the end of the situation complained about or, if
there was an effective domestic remedy to be exhausted, of the final
decision in the process of exhaustion.
- Examining
the case of Mr Fetisov in the light of the above principles, the
Court observes that during the initial period of detention he was
frequently transferred between the police ward and the remand prison
for the purposes of certain procedural acts. Those short-term
interruptions do not prevent the Court from treating his allegations
as reflecting a “continuing situation” in each respective
facility. However, the most recent date on which he was held in
police custody was 12 December 2006 and, accordingly, if he wished to
complain about the conditions of his detention in the ward he should
have done so by 12 June 2007, whereas his application was lodged on
17 July 2007, that is more than six months later. It follows
that Mr Fetisov’s complaint about the conditions of his
detention at the Gukovo police ward has been introduced out of time
and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
3. Preliminary conclusion as to the admissibility of
the complaints relating to the conditions of detention and the
existence of an effective remedy
- The
Court has found that the issue of exhaustion of domestic remedies
must be joined to the merits of the complaint under Article 13 of the
Convention and that a part of the applicant Mr Fetisov’s
complaints was submitted out of time and was inadmissible. As to the
remainder of their complaints concerning the conditions of their
detention and the existence of effective domestic remedies, the Court
considers that they raise serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that they are not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring them inadmissible has been
established.
B. The remainder of the applicants’ complaints
- Some
of the applicants also raised additional complaints about various
alleged deficiencies in the criminal proceedings against them, their
pre-trial detention, property issues, spousal visits and other
matters. The Court has given careful consideration to these
grievances in the light of all the material in its possession and
considers that, in so far as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. EXHAUSTION OF DOMESTIC REMEDIES AND ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
- The Court reiterates that an applicant is normally
required to have recourse only to those remedies that are available
and sufficient to afford redress in respect of the breaches alleged.
The existence of the remedies in question must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness (see, inter
alia, Vernillo v. France, 20 February 1991, § 27,
Series A no. 198, and Johnston and Others v. Ireland,
18 December 1986, § 22, Series A no. 112). 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, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success.
- The Court has already examined the effectiveness of
various domestic remedies suggested by the Russian Government in a
number of cases concerning inadequate conditions of an applicant’s
detention and found them to be lacking in many regards. On that
basis, it has rejected the Government’s objection as to the
non-exhaustion of domestic remedies and has also found a violation of
Article 13 of the Convention. The Court has held in particular 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 conditions
of the applicant’s detention were apparently of a structural
nature and did not concern the applicant’s personal situation
alone (see, among recent authorities, Kozhokar v. Russia,
no. 33099/08, §§ 92-93, 16 December 2010;
Skachkov v. Russia, no. 25432/05, §§ 43-44,
7 October 2010; Vladimir Krivonosov v. Russia,
no. 7772/04, §§ 82-84, 15 July 2010; Lutokhin,
cited above, § 45; Skorobogatykh v. Russia, no.
4871/03, § 52, 22 December 2009; Aleksandr Makarov
v. Russia, no. 15217/07, § 87 89, 12
March 2009; Benediktov, cited above, §§ 27-30;
and also Moiseyev (dec.), cited above).
- As
regards the possibility to complain to a supervising prosecutor, such
complaint falls short of the requirements of an effective remedy
because of the procedural shortcomings that have been previously
identified in the Court’s case-law (see, for instance, Pavlenko
v. Russia, no. 42371/02, §§ 88-89, 1
April 2010; Aleksandr Makarov, § 86, and Benediktov,
§ 29, both cited above). It has been noted that there is no
legal requirement on the prosecutor to hear the complainant or ensure
his or her effective participation in the ensuing proceedings that
would entirely be a matter between the supervising prosecutor and the
supervised body. The complainant would not be a party to any
proceedings and would only be entitled to obtain information about
the way in which the supervisory body dealt with the complaint.
Moreover, the Court has already seen cases in which an applicant did
complain to a prosecutor but his complaint did not elicit any
response (see Antropov v. Russia, no. 22107/03,
§ 55, 29 January 2009). Since the complaint to a prosecutor
about unsatisfactory conditions of detention does not give the person
using it a personal right to the exercise by the State of its
supervisory powers, it cannot be regarded as an effective remedy.
- By
contrast, the judicial proceedings instituted in accordance with
Chapter 25 of the Code of Civil Procedure provide a forum that
guarantees due process of law and effective participation for the
aggrieved individual. In such proceedings, courts can take cognisance
of the merits of the complaint, make findings of fact and order
redress that is tailored to the nature and gravity of the violation.
The ensuing judicial decision will be binding on the defaulting
authority and enforceable against it. It appears that the existing
legal framework renders this remedy prima facie accessible and
capable, at least in theory, of affording appropriate redress.
Nevertheless,
in order to be “effective”, a remedy must be available
not only in theory but also in practice. This means that the
Government should normally be able to illustrate the practical
effectiveness of the remedy with examples from the case-law of the
domestic courts. The Russian Government, however, did not submit a
single judicial decision showing that the complainant had been able
to vindicate his or her rights by having recourse to this remedy. The
Court, for its part, has not noted any examples of the successful use
of this remedy in any of the conditions-of-detention cases that have
previously come before it. Moreover, as the Court has noted in
previous conditions-of-detention cases, the malfunctioning of such a
preventive remedy in a situation of overcrowding is to a large extent
due to the structural nature of the underlying problem. As the
applicants rightly pointed out, even if they were to obtain a
judgment requiring the prison authorities to make good a violation of
their right to an individual sleeping place and to the sanitary norm
of floor surface, their personal situation in an already overcrowded
facility could only be improved at the expense and to the detriment
of other detainees.
The
Court finds that, although Chapter 25 of the Code of Civil Procedure,
as clarified by the Supreme Court’s ruling of 10 February 2009,
provided a solid theoretical legal framework for adjudicating the
detainees’ complaints about inadequate conditions of detention,
it fell short of the requirements of an effective remedy because its
capacity to produce a preventive effect in practice has not been
convincingly demonstrated.
- Finally, the Court has to consider whether the tort
provisions of the Civil Code constituted an effective domestic remedy
capable of providing an aggrieved individual with compensation for
the detention that had already occurred in inhuman or degrading
conditions. The Court has already examined this remedy in several
recent cases, in the context of both Article 35 § 1
and Article 13 of the Convention, and was not satisfied that it was
an effective one. The Court found that, while the possibility of
obtaining compensation was not ruled out, the remedy did not offer
reasonable prospects of success, in particular because the award was
conditional on the establishment of fault on the part of the
authorities. Even in cases where the claimant was able to prove that
the actual conditions of detention deviated from, or fell short of,
the standards required by applicable Russian laws, the Russian courts
have routinely absolved the State of tort liability, finding that the
inadequacy of material conditions was not attributable to some
shortcoming or omission on the part of the prison authorities but
rather to a structural problem, such as insufficient funding of the
penitentiary system. Moreover, the level of the compensation was
unreasonably low in comparison with the awards made by the Court in
similar cases (see, for instance, Roman Karasev v. Russia,
no. 30251/03, §§ 81-85, 25 November 2010;
Shilbergs v. Russia, no. 20075/03, §§ 71-79, 17
December 2009; Skorobogatykh, cited above, §§ 17-18
and 31-32; Kokoshkina v. Russia, no. 2052/08, § 52,
28 May 2009; Aleksandr Makarov, §§ 77 and
87-89; and Benediktov, §§ 29 and 30, both cited
above). Accordingly, a civil claim for damages incurred in connection
with inhuman or degrading conditions of detention is not an effective
remedy that offers both a reasonable prospect of success and adequate
redress.
- In
the light of the above considerations, the Court concludes that for
the time being the Russian legal system does not dispose of an
effective remedy that could be used to prevent the alleged violation
or its continuation and provide the applicant with adequate and
sufficient redress in connection with a complaint about inadequate
conditions of detention. Accordingly, the Court dismisses the
Government’s objection as to the non exhaustion of
domestic remedies and, noting that all the applicants had at least an
“arguable claim” of ill-treatment on account of allegedly
inhuman or degrading conditions of their detention, finds a violation
of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained under Article 3 of the Convention that they had
been detained at various remand prisons in conditions that had been
so harsh as to constitute inhuman or degrading treatment in breach of
this provision, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Establishment of facts
1. General principles
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
adopted the standard of proof “beyond reasonable doubt”.
According to its established case-law, proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. Moreover, the level of
persuasion necessary for reaching a particular conclusion and, in
this connection, the distribution of the burden of proof are
intrinsically linked to the specificity of the facts, the nature of
the allegation made and the Convention right at stake (see, among
others, Nachova and Others v. Bulgaria [GC], nos.
43577/98 and 43579/98, § 147, ECHR 2005 VII; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99,
§ 26, ECHR 2004 VII; and Akdivar and Others v.
Turkey [GC], 16 September 1996, § 168, Reports of
Judgments and Decisions 1996 IV).
- The
Court is mindful of the objective difficulties experienced by the
applicants in collecting evidence to substantiate their claims about
the conditions of their detention. Owing to the restrictions imposed
by the prison regime, detainees cannot realistically be expected to
be able to furnish photographs of their cell or give precise
measurements of its dimensions, temperature or luminosity.
Nevertheless, an applicant must provide an elaborate and consistent
account of the conditions of his or her detention mentioning the
specific elements, such as for instance the dates of his or her
transfer between facilities, which would enable the Court to
determine that the complaint is not manifestly ill-founded or
inadmissible on any other grounds. Only a credible and reasonably
detailed description of the allegedly degrading conditions of
detention constitutes a prima facie case of ill-treatment and serves
as a basis for giving notice of the complaint to the respondent
Government.
- The
Court has held on many occasions that cases concerning allegations of
inadequate conditions of detention do not lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation) because in such
instances the respondent Government alone have access to information
capable of corroborating or refuting these allegations. It follows
that, after the Court has given notice of the applicant’s
complaint to the Government, the burden is on the latter to collect
and produce relevant documents. A failure on their part to submit
convincing evidence on material conditions of detention may give rise
to the drawing of inferences as to the well-foundedness of the
applicant’s allegations (see Gubin v. Russia,
no. 8217/04, § 56, 17 June 2010, and
Khudoyorov v. Russia, no. 6847/02, § 113,
ECHR 2005 X (extracts)).
- In
previous conditions-of-detention cases, the extent of factual
disclosure by the Russian Government was rather limited and the
supporting evidence they produced habitually consisted in a series of
certificates issued by the director of the impugned detention
facility after they had been given notice of the complaint. The Court
repeatedly pointed out that such certificates lacked references to
the original prison documentation and were apparently based on
personal recollections rather than on any objective data and, for
that reason, were of little evidentiary value (see, among other
authorities, Veliyev v. Russia, no. 24202/05, § 127,
24 June 2010; Igor Ivanov v. Russia, no. 34000/02,
§ 34, 7 June 2007; and Belashev, cited above, § 52).
2. Findings of fact in respect of individual cases
(a) The case of Mr Fetisov
- Mr
Fetisov was held in the Novocherkassk remand prison IZ-61/3 from 30
August 2006 to 17 May 2007, with the exception of short periods of
time when he was taken to the Gukovo detention ward. His detention
thus lasted approximately eight months.
- During
his detention Mr Fetisov stayed mainly in two cells: the smaller cell
245 measured 19 square metres and the larger cell 291, 34 square
metres. The parties presented contradictory evidence on the number of
sleeping places and the actual cell population.
- The
Government’s evidence comprised the certificates prepared by
the prison governor in 2009 and the extracts from the prison
population register covering three days within the period of Mr
Fetisov’s detention. The certificates merely affirmed that the
design capacity had not been exceeded, without indicating the actual
cell population on any given date or referring to any documents on
which that affirmation was founded. The fact that they were issued
approximately three years after Mr Fetisov’s detention had
ended further undermined their evidentiary value: as the Court has
pointed out on many occasions, documents prepared after a
considerable period of time cannot be viewed as sufficiently reliable
sources, given the length of time that has elapsed (see Novinskiy
v. Russia, no. 11982/02, § 105, 10 February 2009, and
Shilbergs, § 91, both cited above).
- By
contrast, the Court is satisfied that the three extracts from the
register were the original documents which had been prepared during
the period under examination and which showed the number of sleeping
places in cells 245 and 291 and the actual number of inmates who had
been present in those cells on those dates. The Court considers it
regrettable that the extent of the Government’s disclosure was
restricted to just three extracts which appeared to have been chosen
to reflect the situation in Mr Fetisov’s cell on the day of his
transfer or on the following day. On those dates cell 245, having
four sleeping places, accommodated four persons and cell 291, having
eight places, housed as many inmates. Even in the absence of similar
documents covering other dates, useful information about the
situation in other prison cells and the overall prison population may
be deduced from the extracts submitted. It appears that the
Novocherkassk prison was not generally plagued with the overcrowding
problem, because no other cell had been filled beyond its design
capacity.
- Mr
Fetisov’s evidence included eight handwritten statements from
the persons who had been detained together with him in cell 291.
According to the statements, the cell was equipped with sixteen bunk
beds and its population varied from 20 to 25 persons. The Court
however finds the statements unconvincing for the following reasons.
Firstly, although they were prepared more than six months after their
authors had stayed in the cell, the statements were strikingly
similar in their content to the point that many phrases were repeated
verbatim, thus suggesting that they were not drafted spontaneously.
Secondly, the cell records produced by the Government indicated that
only seven – out of eight – inmates who had given the
statement had shared the cell with Mr Fetisov in the winter of
2006-2007, whereas the author of the eighth statement had first moved
into the cell in the mid-spring of 2007. Accordingly, the number of
statements does not support the conclusion that there were more than
eight cellmates in cell 291 at any given point. Had the cell
population been larger than eight persons, surely it must have been
possible to compile a verifiable list of their names or obtain
further written statements. Thirdly, as noted above, the extracts
from the prison register demonstrated that the prison had not been
generally overcrowded. Even though the Government did not submit any
reliable data covering the periods between September and December
2006 or between January and May 2007, it is highly improbable that
the prison population could have spiked in those periods so sharply
as to result in Mr Fetisov’s cell being filled to three
times its design capacity. Besides, the statements listed the number
of sleeping places, which was twice as large as that listed in the
register. As that number obviously could not have fluctuated so
significantly over a relatively short period of time, this factual
inaccuracy further undermines the credibility of the statements.
- Having assessed the evidence presented by the parties
in its entirety, the Court lends credence to the primary documents
produced by the Government and rejects Mr Fetisov’s allegation
of overpopulation during the period of his detention. It finds that
there was no shortage of sleeping places in the cells and that Mr
Fetisov disposed of at least four square metres of personal space.
(b) The case of Mr Savinov
- Mr
Savinov was held in the Kazan remand prison IZ-16/1 for some eighteen
months, from 13 February 2006 to 20 August 2007.
- Mr
Savinov transited through six cells. It is not disputed that the
design capacity of all the cells, that is the floor surface divided
by the number of sleeping places, afforded at least four square
metres per inmate. The dispute between the parties related to the
issue whether or not the design capacity had been exceeded.
- The
Government produced a significant amount of evidence capable of
corroborating their assertion that the number of inmates had not
surpassed the number of beds. For the reasons outlined above, the
Court does not accept as sufficiently reliable the certificates by
the prison governor and the statements by the prison warders, which
were prepared more than two years after Mr Savinov’s detention
had ended. The fourteen statements by former inmates do not appear to
contain any relevant information because all of them described the
conditions of detention as they had been in 2008 or 2009, whereas Mr
Savinov had been transferred from the Kazan prison already in October
2007. The most important and persuasive part of the Government’s
evidence are the extracts from the prison population register
covering at least one day per month during the entire period of Mr
Savinov’s detention. Those documents reflected the situation as
it existed at the material time. They indicated that Mr Savinov’s
cells had been filled to design capacity or below it and that there
had been no other overcrowded cells in the facility.
- In
support of his allegations, Mr Savinov submitted a magazine article
and a list of his co-detainees in cell 68. The article did mention
the overcrowding problem in the Kazan remand prison; however it did
not refer to the source of the information and its wording was
insufficiently specific to determine whether the word “currently”
referred to the time of its drafting or to the time of its
publication. This information is too generic to be of any real
evidentiary value (compare Rokhlina v. Russia (dec.),
no. 54071/00, 9 September 2004). The list of residents of
cell 68 in the period from November 2007 to January 2008 contained
eight names, including that of Mr Savinov. Two individuals were
mentioned only by their first name and thus cannot be identified. The
Court requested the Government to produce the cell records of their
remaining five individuals, from which it became apparent that only
three of them had actually shared the cell with Mr Savinov and
that the other two had been held elsewhere. In these circumstances,
the Court does not consider the list to be credible. It follows that
cell 68 actually accommodated four persons (Mr Savinov and three
others), which is consistent with the entries in the prison
population register.
- In the light of the parties’ submissions, the
Court finds that Mr Savinov was detained in conditions providing
at least four square metres of personal space for each prisoner. It
has been unable to establish that there was a shortage of sleeping
places in Mr Savinov’s cells.
(c) The case of Mr Telyubayev
- Mr
Telyubayev was held in three different remand prisons.
(i) Remand prison IZ-66/1 in Yekaterinburg
- Mr
Telyubayev transited through cell 203 of the prison during three days
in August and four days in September 2007.
- Cell
203 measured 33 square metres and afforded 16 sleeping places. It
follows from the parties’ submissions and the documents
produced by the Government that the cell population ranged from 3 to
12 inmates.
- The Court finds that Mr Telyubayev had three or more
square metres at his disposal during his stay in prison IZ-66/1.
(ii) Remand prison IZ-74/3 in Chelyabinsk
- Mr
Telyubayev’s stay in the Chelyabinsk prison fell on five days
in August and five days in September 2007.
- Each
time he stayed in cell 116, which measured 16 square metres and was
equipped with four beds.
- The parties disagreed on the number of inmates in the
cell. The extracts from the prison registers covering the dates in
September 2007 indicated that the cell housed four inmates. Mr
Telyubayev claimed that there had been as many as ten prisoners. He
did not specify, however, whether his claim related to the first, the
second or both of his stays. Given a lack of precision in Mr
Telyubayev’s submissions and the absence of any material
capable of corroborating them, the Court finds no indication of
overpopulation in cell 116 and estimates the available floor space
per detainee to have been four square metres.
(iii) Remand prison IZ-56/1 in Orenburg
- Mr
Telyubayev’s accommodation in cell 59 in the Orenburg prison
lasted from 18 August to 6 September 2007, for a total of nineteen
days.
- There
is no discord between the parties as to the characteristics of the
cell. It measured 16 square metres and provided eight sleeping places
but the actual number of inmates was no greater than seven.
- It is therefore established that in the Orenburg
prison Mr Telyubayev disposed of nearly two square metres of
floor surface.
(d) The case of Mr Shakurov
- Mr
Shakurov’s stay in the Kazan remand prison IZ-16/1 lasted from
10 September 2007 until at least June 2009, that is for almost two
years and probably longer. Mr Savinov had been held in that same
remand prison some time before Mr Shakurov arrived there.
- The
parties provided differing information on almost every aspect of Mr
Shakurov’s detention, except the cell number and the dates of
the transfers from one cell to another. Moreover, Mr Shakurov did not
dispute the number of sleeping places as it had been given by the
Government.
- The
Government submitted multiple certificates by the prison governor and
statements by the prison warders, which had been prepared at the time
when Mr Shakurov was still in the prison. However, the affirmations
contained in those statements were too general and unspecific to be
of much use for the fact-finding; for instance, they did not allow
the Court to determine whether or not Mr Shakurov’s conditions
of detention had changed over time and, if they had, which period of
his detention was described therein. By contrast, the extracts from
the prison population register and the floor plans of the entire
facility were the important original documents that provided reliable
and sufficient information on the prison population in general, the
number of inmates in every cell, including those occupied by Mr
Shakurov, and their dimensions.
- Mr
Shakurov corroborated his claim of severe overcrowding with several
hand-written lists containing the names and signatures of individuals
who had allegedly shared the cell with him. It appeared from those
lists that for several weeks in October 2008, cell 3, having ten
sleeping places, accommodated twice as many inmates. However, after
the Court requested from the Government the cell records of the
listed individuals, it transpired that a majority of them had not
been held in cell 3 but in other cells. The actual cell population
did not exceed ten persons, which coincided with the Government’s
submissions and the entries in the prison population register. Since
the lists turned out to be inaccurate and unreliable with regard to
the most important information they purported to prove, that is the
number of inmates, the Court sees no reason to accept them in support
of Mr Shakurov’s other allegation of a paucity of personal
space in cells 66 and 44, which was moreover refuted by the floor
plans produced by the Government.
- On the basis of the evidence presented by the
parties, the Court finds that Mr Shakurov had at his disposal a
sleeping place and at least four square metres of personal space
during the entire period of his detention in the Kazan remand prison.
(e) The case of Mr Korobeynikov
- Mr
Korobeynikov spent almost one year, from 29 November 2006 to 20
November 2007, in the Lipetsk remand prison IZ-48/1.
- While
in prison, he stayed in seven cells which, with the exception of his
initial accommodation in cell 4, were relatively small in size. The
parties disagreed on their exact measurements. The Court lends
credence to the Government’s information on the cell
dimensions, which was corroborated by detailed floor plans.
- In the absence of any disagreement as to the number
of sleeping places and inmates, the Court finds that each detainee
disposed of his own sleeping place and four square metres of floor
surface.
(f) The case of Mr Balammedov
- Mr
Balammedov was detained in the St Petersburg remand prison IZ-47/6
for fourteen months, from 17 January 2007 to 3 April 2008.
- The
Court observes that some of Mr Balammedov’s cells were
unusually large in surface, however, their exact measurements were a
matter of dispute between the parties. Mr Balammedov gave the
dimensions of cell 1/3 as having been 25 by 7 metres and the
Government maintained that the cell measured almost 400 square
metres. To resolve the controversy, the Court obtained from the
Government the floor plans of the entire remand prison, which
demonstrated that Mr Balammedov’s measurements could not have
been accurate. As to Mr Balammedov’s objection that the
cleaning contracts referred to a surface area which was much smaller
than what the total prison surface area should have been had the
sanitary norms been complied with, the Court finds no indication in
the text of the contract that it covered the entire prison rather
than some parts of it or a separate wing.
- Turning
to the issue of alleged overpopulation, the Court notes that Mr
Balammedov did not produce any evidence in support of his claim that
cell 1/3 had actually accommodated more inmates than it had contained
sleeping places. The information produced by the Government was also
scarce. As the Court has pointed out above, the statements by the
prison governor and warders are of little evidentiary value because
of the two-year gap between the period under examination and the time
of their drafting and also because of their vague wording and lack of
references to any verifiable sources of information. The extracts
from the prison population register are an important and reliable
piece of evidence but the Government did not explain why they chose
to submit just four extracts covering some random dates in 2007. The
extent of their disclosure was obviously insufficient to make
reliable findings of fact in respect of the entire fourteen-month
period of Mr Balammedov’s detention. Nevertheless, it appears
from the extracts that the St Petersburg prison did not suffer from
overpopulation on those dates and even had some spare capacity which
could be used to accommodate new inmates. In these circumstances, Mr
Balammedov’s affirmation that cell 1/3 had been filled to more
than forty to sixty per cent beyond its design capacity and that such
overcrowding had only occurred in between the dates on the extracts,
appears implausible.
- The Court finally observes that the parties had no
disagreement on the characteristics of the smaller cells. In the
light of the above considerations, it finds that it is unable to
establish to the standard required under Article 3 of the Convention,
“beyond reasonable doubt”, that Mr Balammedov was
detained in overcrowded cells. He appears to have disposed of
approximately four square metres of personal space at all times.
B. Compliance with Article 3
1. General principles
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a 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 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).
- 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 moral 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).
- In the context of deprivation of liberty the Court
has consistently stressed that, to fall under Article 3, the
suffering and humiliation involved must in any event go beyond that
inevitable element of suffering and humiliation connected with the
detention. The State must ensure that a person is detained in
conditions which are compatible with respect for human dignity, that
the manner and method of the execution of the measure do not subject
him to distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention and that, given the
practical demands of imprisonment, his health and well-being are
adequately secured (see, Kudła v. Poland [GC], no.
30210/96, §§ 92-94, ECHR 2000 XI and Popov
v. Russia, no. 26853/04, § 208, 13 July
2006).
- When
assessing conditions of detention, account has to be taken of the
cumulative effects of these conditions, as well as of specific
allegations made by the applicant (see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001-II). The length of the
period during which a person is detained in the particular conditions
also has to be considered (see, among other authorities, Alver
v. Estonia, no. 64812/01, 8 November 2005).
- The
extreme lack of space in a prison cell weighs heavily as an aspect to
be taken into account for the purpose of establishing whether the
impugned detention conditions were “degrading” from the
point of view of Article 3 (see Karalevičius v. Lithuania,
no. 53254/99, § 36, 7 April 2005). In its previous
cases where applicants had at their disposal less than 3 sq. m of
floor surface, the Court found that the overcrowding was so severe as
to justify of itself a finding of a violation of Article 3 (see,
among many other authorities, Svetlana Kazmina v. Russia,
no. 8609/04, § 70, 2 December 2010; Kovaleva
v. Russia, no. 7782/04, § 56, 2 December
2010; Roman Karasev, cited above, §§ 48-49;
Aleksandr Leonidovich Ivanov v. Russia, no. 33929/03,
§ 35, 23 September 2010; Denisenko and Bogdanchikov
v. Russia, no. 3811/02, § 98, 12 February
2009; Guliyev, cited above, § 32; Lind v. Russia,
no. 25664/05, § 59, 6 December 2007; Kantyrev
v. Russia, no. 37213/02, §§ 50-51, 21
June 2007; Andrey Frolov v. Russia, no. 205/02,
§§ 47-49, 29 March 2007; Labzov v. Russia,
no. 62208/00, § 44, 16 June 2005; and Mayzit
v. Russia, no. 63378/00, § 40, 20 January
2005).
- In cases where the inmates appeared to have at their
disposal sufficient personal space, the Court noted other aspects of
physical conditions of detention as being relevant for the assessment
of compliance with that provision. Such elements included, in
particular, access to natural light or air, availability of
ventilation, adequacy of heating arrangements, the possibility of
using the toilet in private, and compliance with basic sanitary and
hygienic requirements. Thus, even in cases where a larger prison cell
was at issue – measuring in the range of three to four square
metres per inmate – the Court found a violation of Article 3
since the space factor was coupled with the established lack of
ventilation and lighting (see, for example, Vlasov v. Russia,
no. 78146/01, § 84, 12 June 2008; Babushkin v.
Russia, no. 67253/01, § 44, 18 October 2007; and Trepashkin
v. Russia, no. 36898/03, § 94, 19 July 2007).
2. Application of the principles in the instant case
- The
Court will now proceed to assess, in the light of the above mentioned
general principles and requirements, whether or not the facts, as
established above, disclosed a violation of Article 3 in individual
cases.
- The
present case concerned the conditions of detention in seven different
remand prisons: Novocherkassk prison IZ-61/3, Kazan prison IZ 16/1,
Yekaterinburg prison IZ-66/1, Chelyabinsk prison IZ-74/3, Orenburg
prison IZ-56/1, Lipetsk prison IZ-48/1, and St Petersburg prison
IZ-47/6. The Court found it established, to the standard required
under Article 3 of the Convention, that at the material time at least
one prison was plagued with a severe shortage of personal space
available to inmates.
- The
applicant Mr Telyubayev, during his nineteen-day stay in the Orenburg
prison, was held in conditions that provided approximately two square
metres of floor surface per inmate. Nevertheless, he disposed of his
own personal sleeping place (see paragraphs 111-113 above). By
contrast, the applicants Mr Fetisov, Mr Savinov, Mr Shakurov, Mr
Korobeynikov, Mr Balammedov, as well as Mr Telyubayev during his
stays in the Yekaterinburg and Chelyabinsk facilities, had at their
disposal at least four square metres of floor surface and a quantity
of sleeping places sufficient for them and their cellmates (see
paragraphs 98, 103, 118, 121, 125, 107 and 110 above). It cannot be
said that the overall dimensions of their cells were so small as to
restrict the inmates’ freedom of movement beyond the threshold
tolerated by Article 3.
- In
the light of the parties’ submissions and the legal and
normative regulations regarding the regime in Russian remand prisons,
as applicable at the material time (see paragraph 57 et seq. above),
the Court also considers the following to be established. The
applicants were allowed a one-hour period of outdoor exercise daily.
Windows were not fitted with metal shutters or other contraptions
preventing natural light from penetrating into the cell. Where
available, a small window pane could be opened for fresh air. Cells
were additionally equipped with artificial lighting and ventilation.
- As
regards sanitary and hygiene conditions, it is noted that both the
dining table and the lavatory pan were located inside the applicants’
cells, sometimes as close to each other as one or one and a half
metres. A partition, approximately one to one a half metres in
height, separated the toilet on one side; the prison regulations did
not allow the toilet to be completely shielded from view by means of
a door or a curtain. Cold running water was normally available in
cells and detainees had access to showers once every seven to ten
days.
- The
case of Mr Balammedov calls for particular attention. He had spent a
significant portion of his fourteen-month detention on remand in two
large-capacity dormitories in the St Petersburg prison IZ-47/6. It is
recalled that the Committee for the Prevention of Torture expressed
strong concern and objections to the very principle of such
accommodation arrangements frequently encountered in Central and
Eastern European prisons, because the dormitories in question had
been found to hold prisoners under extremely cramped and insalubrious
conditions. The Committee also noted that such accommodation
inevitably implied a lack of privacy for prisoners in their everyday
lives (see paragraph 29 of the 11th General Report, cited in
paragraph 67 above). In Mr Balammedov’s case, however, the
Court was unable to establish that the dormitories were filled beyond
the design capacity. Although premises shared by up to a hundred
inmates undoubtedly restricted the privacy of the inhabitants, the
floor plans submitted by the Government demonstrated that the toilet
and washing facilities were located in a separate annex and that the
lavatory pans were sufficient in number.
- The
Court acknowledges that the conditions of detention of the applicants
fell short of the Minimum Standard Rules for the Treatment of
Prisoners, the European Prison Rules and the recommendations of the
Committee for the Prevention of Torture in some aspects, including in
particular a lack of privacy for detainees using the toilet, an
insufficient frequency of hot showers and restricted out-of-cell
activities. Furthermore, the cell in which Mr Telyubayev was detained
in Orenburg prison IZ-56/1 offered an extremely restricted personal
space to detainees. Nevertheless, taking into account the cumulative
effect of those conditions and in particular the brevity of Mr
Telyubyev’s stay at the Orenburg prison, the Court does not
consider that the conditions of the applicants’ detention,
although far from adequate, reached the threshold of severity
required to characterise the treatment as inhuman or degrading within
the meaning of Article 3 of the Convention. Therefore, there has been
no violation of this provision.
V. ALLEGED HINDRANCE TO THE APPLICANT MR SHAKUROV’S
RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION
- The
applicant Mr Shakurov complained about the opening of the Court’s
letters addressed to him. In his view, this amounted to an attempt to
hinder his right of individual petition enshrined in Article 34 of
the Convention, which provides as follows:
“The Court may receive applications from any
person... 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.”
- The
Government acknowledged that one of the Court’s letters had
indeed been opened and stamped. The officials responsible had been
identified and disciplined. They submitted that there had been no
violation of Article 34 because the applicant Mr Shakurov had been
able to exercise fully his right to petition Russian and
international authorities, including this Court. They also pointed
out that the Federal Penitentiary Service had repeatedly reminded its
employees that correspondence with the Court should remain
confidential and be diligently dispatched and delivered. Appropriate
training had been provided to the staff.
- The
Court observes 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 Cooke v.
Austria, no. 25878/94, § 46, 8 February 2000, and
Ergi v. Turkey, 28 July 1998, § 105, Reports
1998 IV).
- 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 contacts designed to dissuade or
discourage them from pursuing a Convention remedy (see Kurt v.
Turkey, 25 May 1998, § 160, Reports 1998-III,
and Tanrıkulu v. Turkey [GC], no. 23763/94, § 130,
ECHR 1999-IV, with further references).
- It
is important to respect the confidentiality of the Court’s
correspondence with the applicants since it may concern allegations
against prison authorities or prison officials. The opening of
letters from the Court or addressed to it undoubtedly gives rise to
the possibility that they will be read and may conceivably, on
occasion, also create a risk of reprisals by prison staff against the
prisoner concerned. The opening of letters by prison authorities can
therefore hinder applicants in bringing their cases to the Court (see
Ponushkov v. Russia, no. 30209/04, § 80, 6 November
2008, and Klyakhin v. Russia, no. 46082/99, §§ 118
and 119, 30 November 2004).
- It
is not in dispute between the parties that the Court’s letter
of 14 February 2011 was opened and stamped in the correspondence
unit of Kazan remand prison IZ-16/1. Pursuant to Article 91 of the
Penitentiary Code, correspondence with the Court is privileged and is
not subject to censorship. The Court’s letter was therefore
opened in breach of domestic law, as was acknowledged by the
Government (see paragraph 39 above). Moreover, that letter contained
the Court’s request for certain additional information
concerning the conditions of Mr Shakurov’s detention in the
remand prison. In these circumstances, the Court considers that the
opening of his correspondence could have had an intimidating effect
on the applicant and constituted an inappropriate interference with
the exercise of his right of individual petition in breach of the
respondent State’s obligation under Article 34 of the
Convention (see Ponushkov, §§ 81-85, cited
above).
- It
follows therefore that in Mr Shakurov’s case the respondent
State has failed to comply with its obligations under Article 34 of
the Convention.
VI. 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
applicants claimed the following amounts in respect of non pecuniary
damage:
Mr Fetisov 16,000
euros (EUR);
Mr Savinov EUR
35,000;
Mr Telyubayev EUR
1,000;
Mr Shakurov EUR
200,000;
Mr Korobeynikov EUR
10,000,000, and
Mr Balammedov EUR
100,000.
- The
Government considered their claims to be excessive.
- The
Court has found a violation of Article 13 of the Convention on
account of the absence of an effective domestic remedy by which the
applicants could have ventilated their complaints about the
conditions of their detention. It has also found a breach of Article
34 in respect of Mr Shakurov.
- In
these circumstances, the Court considers that the finding of a
violation constitutes sufficient just satisfaction. Accordingly, it
rejects the applicants’ claims in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant Mr Fetisov claimed 5,000 Russian roubles (RUB) in postal
expenses, RUB 20,000 in legal costs in the domestic proceedings, and
RUB 162,000 in respect of his wife’s travel expenses and the
purchase of food and toiletries during his pre-trial detention. The
Government pointed out that no supporting documents had been
provided.
- The
other applicants did not claim any costs or expenses.
- According
to the Court’s established case-law, costs and expenses will
not be awarded under Article 41 unless it is established that they
were actually incurred, were necessarily incurred and are also
reasonable as to quantum (see Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
- In
the case of Mr Fetisov, the amount of EUR 850 has already been paid
to the applicant by way of legal aid and the Court does not consider
it necessary to make an additional award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Decides to join to the merits the Government’s
objection relating the exhaustion of domestic remedies and rejects
it;
- Declares admissible the applicants’
complaints about the conditions of their detention in various remand
prisons and about the alleged absence of an effective domestic remedy
in this connection, and inadmissible the remainder of the
application, including the complaints by Mr Fetisov in the part
concerning his detention in the police ward;
- Holds that there has been no violation of
Article 3 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention in respect of all the applicants;
6. Holds that in Mr Shakurov’s case the
respondent State has failed to comply with its obligations under
Article 34 of the Convention;
- Holds that the finding of a violation
constitutes sufficient just satisfaction;
- Dismisses the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President