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FIRST
SECTION
CASE OF USHAKOV v. RUSSIA
(Application
no. 10641/09)
JUDGMENT
STRASBOURG
25 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ushakov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Mirjana
Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10641/09)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Sergey Yuryevich Ushakov (“the
applicant”), on 13 January 2009.
- The
applicant, who had been granted legal aid, was represented by Mr P.
Finogenov, a lawyer practising in Moscow. The Russian
Government (“the Government”) were represented by Mr
G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
3. The
applicant alleged, in particular, that he had been detained in
apalling conditions in a remand prison and correctional colony.
- On
17 November 2009 the
President of the First Section decided to give notice of the
application to the Government and granted priority treatment to it
under Rule 41 of the Rules of Court. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and is serving a prison
sentence in the Samara Region.
A. The applicant’s detention in remand prison
no. IZ-63/2
- From
11 July to 22 October 2008 the applicant was held in remand prison
no. IZ-63/2 of Syzran in the Samara Region pending criminal
proceedings against him.
- The
Government and the applicant provided differing descriptions of the
conditions of the applicant’s detention.
1. The Government’s description of the conditions
of detention
- The
Government submitted extracts from the register of the remand prison
population. They further submitted data concerning the size of the
cells based on statements made by the remand prison officers. In
particular, they provided the following information:
|
Cell no.
|
Period of detention
|
Surface area (in square metres)
|
Number of inmates
|
Number of beds
|
|
2
|
From 11 to 14 July
|
37.9
|
8-9
|
9
|
|
122
|
From 14 to 17 July
|
30.8
|
7
|
7
|
|
122
|
From 21 to 25 July
|
7
|
|
144
|
From 29 July to 4 August
|
30.1
|
6-7
|
7
|
|
|
From 6 to 14 August
|
|
|
|
From 28 to 28 August
|
|
|
|
From 1 to 9 September
|
|
|
|
From 11 to 18 September
|
7
|
|
|
From 30 September to 3 October
|
5-7
|
|
113
|
From 3 to 10 October
|
32.1
|
7
|
8
|
|
119
|
From 10 to 16 October
|
31.3
|
7
|
7
|
|
122
|
From 16 to 22 October
|
30.8
|
6-7
|
7
|
- The applicant spent a considerable amount of time
outside the prison cells. He participated in questioning and other
investigative activities, and met with his lawyer, relatives and
other persons. He was allowed at least an hour-long daily walk in a
specially equipped prison yard and weekly showers. During inspections
and cleaning of the cells the inmates, including the applicant, were
taken outside the cells as well.
- All
the cells of the remand prison were equipped with natural and
artificial ventilation which was in a good working order. The windows
were covered with metal bars which did not prevent daylight coming
through. The artificial day lighting in the cells was in compliance
with the applicable specifications and was on from 6 a.m. to 10 p.m.
At night low-voltage bulbs were used to maintain lighting for
surveillance and practical reasons (for example, to provide lighting
in the toilet area).
- Each
cell was equipped with a toilet and a sink located in the corner. The
distance between the table and the toilet was at least 1.5 m and the
distance between the toilet and the nearest bed was at least 1.2 m.
The toilet was separated from the living area of the cell by a
partition measuring at least one metre in height.
2. The applicant’s description of the conditions
of detention
- The
applicant contested the description of the conditions of his
detention in the remand prison provided by the Government. In
particular he provided the following information:
|
Cell no.
|
Period of detention
|
Surface area (in square metres)
|
Number of inmates
|
Number of beds
|
|
122
|
From 13 to 17 July
|
26.6
|
Up to 23
|
10
|
|
144
|
From 19 July to 2 October
|
25.4
|
Up to 19
|
10
|
|
113
|
From 2 to 11 October
|
26.6
|
Up to 21
|
10
|
|
114
|
From 11 to 18 October
|
28.8
|
8
|
8
|
|
122
|
From 18 to 21 October
|
26.6
|
Up to 23
|
10
|
- While it was true that on several occasions the
applicant was transported to the courthouse to attend hearings, the
rest of the time he was confined to his cell. He was allowed to see
his lawyer only once. That meeting lasted no longer than one hour.
The meetings with the officers of the remand prison which took place
outside his cell did not exceed thirty minutes.
- The
applicant was provided with an individual bed only when detained in
cell no. 114. For the rest of the time he had to share the bed
with two to three other inmates.
- The
ventilation did not function properly and was insufficient due to the
overcrowding of the cells. The air was stuffy and humid. It was
filled with tobacco smoke. Dirty condensation accumulated on the
walls and the ceiling and then trickled down. The light was
constantly on. Low-voltage bulbs were not used. The windows were
covered with metal bars both on the inside and outside.
- The
flushing system in the toilet did not provide a sufficient amount of
water to keep the toilet clean. The odour emanating from the toilet
was very bad and the inmates had to burn paper to mask it. The
distance between the toilet and the dinner table was 1.8 metres in
cells nos. 113, 122, 144. In cell no. 114 the toilet was
located some 1.2 metres away from the dinner table.
- In
his submissions of 1 June 2010, the applicant alleged that on
the days of the trial hearings he had been transported to and from
the courthouse in appalling conditions. The vans were overcrowded and
each trip lasted over two hours.
B. The applicant’s detention in correctional
colony no. IK-13
- On
29 September 2008 the applicant was convicted of another drug related
offence and sentenced to six years and six months’ imprisonment
in a high-security colony. He was sent to serve a prison sentence in
correctional colony no. IK-13 in the Samara Region.
- The
applicant was held in the colony from 21 January to 11 July
2009.
1. The description provided by the Government
|
Dormitory no.
|
Period of detention
|
Surface area (in square metres)
|
Number of inmates
|
Number of beds
|
|
Quarantine
|
From 21 to 26 January
|
176.04
|
|
56
|
|
2
|
From 27 January to 8 February
|
356.5
|
|
132
|
|
Disciplinary cell no. 2
|
From 9 February to 7 July
|
8.8
|
4
|
4
|
- The
applicant was provided with an individual bed, bedding and cutlery.
While he was held in the disciplinary cell he was allowed a daily
walk which lasted at least an hour in a specially equipped yard. He
also spent time outside the cell when taking a shower. He was invited
to meetings with the administration of the correctional colony.
- The
dormitories and the disciplinary cell were equipped with artificial
and natural ventilation. The dormitories had at least ten windows and
nine lamps. The disciplinary cell had a window measuring 0.9 by
1.0 sq. m. It was reinforced with metal bars which did not
prevent daylight coming into the cell. The cell was provided with two
daylight lamps. At night low-voltage bulbs were used to light the
cells for surveillance and practical reasons.
- The
dormitories had separate restrooms ensuring sufficient privacy. The
toilet in the disciplinary cell was placed in the corner one metre
away from the dinner table. The distance between the toilet and the
nearest bed was 0.6 m.
2. The applicant’s description of the conditions
of detention
- The
applicant contested the description of the conditions of his
detention in the colony. In particular he provided the following
information:
|
Dormitory no.
|
Period of detention
|
Surface area (in square metres)
|
Number of inmates
|
Number of beds
|
|
Quarantine
|
From 21 to 26 January
|
176.04
|
|
56
|
|
2
|
From 27 January 6 February
|
356.5
|
|
132
|
|
Disciplinary cell no. 2
|
From 6 February to 29 April
|
6.77
|
4
|
4
|
|
Disciplinary cell no. 3
|
From 29 April to 29 May
|
8.8
|
|
|
|
Disciplinary cell no. 2
|
From 29 May to 7 July
|
6.77
|
4
|
4
|
- There was no artificial ventilation in disciplinary
cell no. 2. The opening of a window pane measuring 0.2 by 0.3
m was insufficient to ensure the proper ventilation of the cell. The
lighting was dim and insufficient. The toilet was not cleaned and
reeked. It was located some 0.85 metres and 1.2 metres away from
the dinner table. The windows were covered with two rows of metal
bars inside and outside.
- For
the whole time the applicant was detained in the disciplinary cell he
was never taken for a walk outside.
C. The applicant’s correspondence with his
representative before the Court
- On
1 February and 5 April 2010 the administration of
correctional colony no. IK-29 allegedly opened the applicant’s
letters addressed to his representative before the Court.
- The
applicant’s letter dispatched on 2 April 2010 did not
reach his representative.
- The
applicant’s letters of 4 and 19 May 2010 addressed to his
representative were allegedly dispatched with a delay of thirteen and
six days respectively.
II. RELEVANT DOMESTIC LAW
- Section
23 of the Detention of Suspects Act of 15 July 1995 provides that
detainees should be kept in conditions which satisfy sanitary and
hygienic requirements. They should be provided with an individual
sleeping place and given bedding, tableware and toiletries. Each
inmate should have no less than four square metres of personal space
in his or her cell.
- Article 99 § 1 of the Penitentiary
Code of 8 January 1997 provides for a minimum standard
of two square metres of personal space for male prisoners in
correctional colonies.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that his detention in
remand prison no. IZ 63/2 and in disciplinary cell no. 2
in correctional colony no. IK-13 in the Samara Region had been in
contravention of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government noted that the applicant had failed to bring his
grievances to the attention of Russian courts and considered that his
complaint should be rejected for failure to comply with the
requirements of Article 35 § 1 of the Convention.
They submitted copies of judgments delivered by the Syzran Town Court
of the Samara Region on 15 February 2008 and 17 September
2009. The Town Court considered complaints about the conditions of
the detention filed by Kor. and Kon., inmates who had been detained
in remand prison no. IZ-63/2 of Syzran. In both cases the Town
Court found in part for the claimants. It established that the
hygienic conditions in the cells where they had been detained had
been inadequate. In particular, the toilet had not been sufficiently
isolated from the living area of the cell and it had been placed too
close to the dining table. The Town Court awarded the plaintiffs
RUB 300 and 100 respectively. Each of them was ordered to pay
RUB 100 as a court fee.
- The
applicant contested that argument. With reference to the Court’s
case-law (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR
2001-XI; Moiseyev v. Russia, (dec.), no. 62936/00, 9 December
2004; Mamedova v. Russia, no. 7064/05, § 57, 1
June 2006; and Benediktov v. Russia, no. 106/02, §
29, 10 May 2007), he asserted that the Government had failed to prove
that an effective remedy in fact existed in Russia in respect of the
complaint about the conditions of his detention. He further noted
that the compensation awarded by the Town Court to the claimants in
the cases cited by the Government had been too low to be considered
as adequate redress within the meaning of the Convention’s
case-law.
- The Court observes that in a significant number of
previous cases, in comparable circumstances, it found that the
Government had failed to demonstrate what redress could have been
afforded to the applicant by the competent domestic authorities,
taking into account that the problems arising from the conditions of
the applicant’s detention had apparently been of a structural
nature and had not concerned the applicant’s personal situation
alone (see, for example, Benediktov, cited above, §§ 29-30).
Nor can the Court accept, without going into further detail with
regard to the adequacy of the compensation awarded by the domestic
courts, that the two cases cited by the Government suffice to show
the existence of settled domestic practice that would prove the
effectiveness of the remedy (see, mutatis mutandis, Aleksandr
Makarov v. Russia, no. 15217/07, § 87, 12 March
2009).
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
Government considered that the conditions of the applicant’s
detention both in the remand prison and the correctional colony were
in compliance with the standards prescribed by Article 3 of the
Convention. At no time was the applicant held in overcrowded cells.
The cells were regularly cleaned and disinfected. The Government
relied on copies of the daily registers of the remand prison
population and statements made by prison officers in December 2009.
They further provided statements by the administration of the
correctional colony where the applicant had been detained. They also
submitted hand-drawn plans of the cells of the remand prison to
substantiate their submissions concerning the layout of the prison
cells and disciplinary cell no. 2 in the correctional colony.
The plans were signed and stamped by the remand prison
administration, but contained no measurements indicating the size of
the cells.
- The
applicant maintained his complaint. He
reiterated that he had been detained in severely overcrowded cells
where he was afforded no more than 1.7 sq. m of personal space. The
number of beds in the remand prison and disciplinary cells of the
correctional colony was insufficient and the inmates had to take
turns to sleep. It was hot and stuffy in the cells. The overcrowding
made it impossible for the inmates to rest and provoked conflicts
between them. As a result of his detention in these appalling
conditions, the applicant lost 15 kg and developed shortness of
breath. He coughed incessantly, had headaches and hypertension, and
his body was covered in pimples.
2. The Court’s assessment
- The
Court reiterates that Article 3 enshrines one of the fundamental
values of a democratic society. The Convention prohibits in absolute
terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances or the victim’s behaviour
(see, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must in any event go beyond the inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment. Although measures depriving a person of liberty may often
involve such an element, in accordance with Article 3 of the
Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła v. Poland [GC],
no. 30210/96, § 92-94, ECHR 2000 XI).
- Turning
to the facts of the instant case, the Court notes that the parties
disagreed as to most aspects of the conditions of the applicant’s
detention. However, there is no need for the Court to establish the
veracity of each and every allegation, because it can find a
violation of Article 3 on the basis of the facts presented to it
by the applicant which the respondent Government failed to refute
(see Grigoryevskikh v. Russia, no. 22/03, § 55, 9
April 2009).
- In
particular, the Court observes that the Government were unable to
substantiate their allegations as regards the measurements of the
cells where the applicant had been detained. The Government submitted
hand-drawn plans of the cells’ layout without indicating their
sizes. Their assertions concerning the measurements of the cells were
based on the statements of the penitentiary establishments’
authorities and were not supported by any official documentation. The
fact that the documents submitted by the Government were signed and
stamped is of no significance.
- In
such circumstances the Court considers that a failure on the
Government’s part to submit reliable information concerning the
measurements of the cells where the applicant had been detained
without any explanation may give rise to the drawing of inferences as
to the well-foundedness of the applicant’s allegations (see
Ahmet Özkan and Others v. Turkey, no. 21689/93, §
426, 6 April 2004). Accordingly, the Court will examine the
issue on the basis of the applicant’s submissions as regards
the cells’ measurements.
- Even
accepting the cell population figures submitted by the Government,
the personal space afforded to the applicant was below the 4 sq. m
prescribed by national legislation. On certain occasions it was as
low as 2.9 sq. m in the remand prison and 1.7 sq. m all the
time the applicant was detained in disciplinary cell no. 2 in
the correctional colony. Furthermore, part of the cell surface was
occupied by beds, a dinner table and a toilet. As it appears even
from the hand-drawn plans of the cells submitted by the Government,
such arrangement left inmates with literally no free space in which
they could move.
- The
Court further notes that the applicant was allowed no more than an
hour of exercise outside the cell per day. He remained confined to
his cell practically all day for approximately seven and a half
months. The infrequent meetings the applicant had taken part in
outside the cell and referred to by the Government hardly had any
impact on his situation.
- It
is also of a particular concern to the Court that the toilet was
placed very close to the dinner table. Besides, the partition
separating the toilet from the living area of the cell was no higher
than one metre and, consequently, did not offer sufficient privacy to
a detainee using it.
- Having
regard to the cumulative effect of those factors, the Court finds
that, having been afforded no privacy and experiencing a lack of
personal space for more than seven months, the applicant must have
been subjected to distress and hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention, which aroused
in him feelings of anguish and inferiority capable of humiliating and
debasing him.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant’s detention in
remand prison no. IZ-63/2 from 13 July to 22 October
2009 and in disciplinary cell no. 2 in correctional colony
no. IK-13 from 6 February to 29 April and from 29 May
to 7 July 2010, which it considers were inhuman and degrading
within the meaning of this provision.
- In
view of the above finding, the Court does not consider it necessary
to examine the remainder of the parties’ submissions concerning
other aspects of the conditions of the applicant’s detention
during the periods indicated above.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the criminal
proceedings against him were unfair. He referred to Articles 6,
8, 13 and 14 of the Convention. He also alleged that the
correspondence between him and his representative before the Court
was interfered with in a manner which amounted to a violation of
Articles 8 and 34 of the Convention.
- However,
having regard to all the material in its possession, the Court finds
that there is no 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 as being manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect
of non pecuniary damage.
- The
Government submitted that the applicant’s allegations should
not give rise to an award of compensation for non-pecuniary damage.
In any event, they considered the applicant’s claims excessive
and suggested that the acknowledgment of a violation would constitute
sufficient just satisfaction.
- The
Court accepts that the applicant suffered humiliation and distress
because of the inhuman and degrading conditions of his detention. In
these circumstances, the Court considers that the applicant’s
suffering cannot be compensated for by a mere finding of a violation.
Making its assessment on an equitable basis, it awards him EUR 9,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant’s detention in remand prison no. IZ-63/2
from 13 July to 22 October 2009 and in the disciplinary
cell in correctional colony no. IK-13 from 6 February to
29 April and from 29 May to 7 July 2010 admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 9,000 (nine thousand euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 October 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
