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FIRST
SECTION
CASE OF PETRENKO v. RUSSIA
(Application
no. 30112/04)
JUDGMENT
STRASBOURG
20 January
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 Petrenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30112/04) 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 Oleg Olegovich Petrenko
(“the applicant”), on 15 March 2004.
- The applicant, who had been granted legal aid, was
represented by Ms O.V. Preobrazhenskaya, a lawyer practising in
Strasbourg and Moscow. The Russian Government (“the
Government”) were represented by Ms V. Milinchuk and
subsequently by Mr G. Matyushkin, the former and current
Representatives of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been detained in
inhuman and degrading conditions and that the length of the criminal
proceedings against him had been excessive.
- On
28 February 2008 the President of the First Section decided to
give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Sosnovyy Bor in the Leningrad
Region.
A. Criminal proceedings against the applicant
- On
20 May 2001 the applicant was arrested. On 23 May 2001 he was placed
in detention.
- By
judgment of 6 September 2001 the Sosnovyy Bor Town Court of the
Leningrad Region convicted him of robbery and sentenced him to five
years and three months’ imprisonment. On 27 March 2002 the
Leningrad Regional Court quashed the judgment on appeal and ordered
that the case be remitted for an additional investigation.
- On
8 August 2002 the Town Court again convicted the applicant of
robbery. It sentenced him to four years and eight months’
imprisonment. The applicant brought an appeal.
- On
11 February 2004 the Regional Court held an appeal hearing. By a
decision of the same date, it changed the crime’s qualification
and upheld the rest of the trial court’s judgment.
B. Conditions of detention
- In
the period from 30 May 2001 to 2 March 2004 the applicant was
detained in remand prison IZ-47/1 of St Petersburg.
1. The applicant’s account
- The
applicant submitted that he had been detained in overcrowded cells
and that the prisoners had had to take turns to sleep. Besides, his
cells had been dirty and had lacked ventilation. He also submitted
that the food had been of poor quality.
2. The Government’s account
- According
to the Government’s submissions, the applicant was held in
following cells:
(a) cell
no. 840 that measured 7,568 square metres and accommodated seven
detainees;
(b) cell
no. 844 that measured 7,568 square metres and accommodated seven
detainees;
(c) cell
no. 941 that measured 21,367 square metres and accommodated thirteen
detainees;
(d) cell
no. 859 that measured 7,568 square metres and accommodated seven
detainees.
- The
Government conceded that the cells had been “overcrowded”.
They pointed out, however, that the applicant at all times had been
provided with an individual sleeping place and bed linen and that
there had been enough space to move around and to do exercises in the
cells.
- They
further submitted that the cells had been naturally and artificially
ventilated and lit. The average air temperature in winter had been
+18ºC and in summer +22ºC. The cells had been equipped with
heating devices and a dining table. Toilet facilities had been
separated from the cells’ living area by a partition of 1.5 m
in height. The applicant had never complained to the authorities of
any insects or rodents.
- The
food had been of a proper quality. The applicant had never been
limited in fresh water. He had had a possibility of taking a daily
one-hour walk. As to the medical assistance, he had undergone various
medical examinations and had been treated against tuberculosis. The
appropriate treatment had resulted in the favourable dynamics of his
disease.
II. Relevant domestic
law
16. The
Civil Code
Article 151. Compensation for non-pecuniary damage
“If a person has sustained non-pecuniary damage
(physical or mental suffering) as a result of actions violating his
personal non-pecuniary rights or other non-material benefits enjoyed
by citizens, and also in other instances provided for by law, the
court may require the perpetrator to afford monetary compensation for
the said damage.”
Article 1064. General grounds for liability for
causing loss or harm
“1. Loss or harm
caused to a person or to a company shall be compensated in
full by the wrongdoer.
The law may impose responsibility to compensate for loss
or harm on a person other than the wrongdoer”
Article 1069. Liability for damage caused by State
authorities,
local authorities and their officials
“Damage caused to an individual or a legal entity
by the unlawful actions (inactions) of State, municipal bodies or
their officials ... must be compensated. The compensation shall be
paid out of the funds of the Treasury of the Russian Federation, the
treasury of the constituent element of the Russian Federation or the
treasury of the municipal entity respectively”.
Article 1071. Agencies and persons acting on behalf
of the treasury
in awarding compensation for damage at its expense
“In instances where, in accordance with the
present Code or other laws, the damage caused is subject to
compensation at the expense of the treasury of the Russian
Federation, the treasury of the subject of the Russian Federation or
the treasury of the municipal authority, the respective financial
agencies shall act on behalf of the treasury ...”
Article 1099. General provisions
“1. The grounds and amount of
compensation payable to an individual for non-pecuniary damage shall
be determined by the rules laid down in the present Chapter and in
Article 151 of the present Code.
2. ...
3. Compensation for non-pecuniary damage shall be
awarded irrespective of any award for pecuniary damage.”
Article 1100. Grounds for compensation for
non-pecuniary damage
“Compensation for non-pecuniary damage shall be
awarded irrespective of the fault of the perpetrator, when:
... the damage is caused to a person as a result of his
or her unlawful conviction, unlawful criminal prosecution, unlawful
application, as a measure of restraint, of remand in custody or of a
written undertaking not to leave a specified place, or unlawful
imposition of an administrative penalty in the form of arrest or
corrective labour.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in remand
centre IZ-47/1 of St Petersburg from 30 May 2001 to 2 March
2004 had been in breach of Article 3 of the Convention which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Russian Government submitted that the applicant had not complied with
the admissibility requirements defined in Article 35 § 1
of the Convention which stipulates:
“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”.
- Firstly,
according to the national authorities, the applicant had failed to
exhaust domestic remedies as he had not brought a civil action for
damage caused by the allegedly unsatisfactory detention conditions.
In support of the effectiveness of that remedy, they referred to
several precedents in the domestic practice when in similar
circumstances persons had brought court proceedings and had been
awarded compensation.
- In
their additional submissions, the Government stated that the
applicant could have also applied to relevant prosecution
authorities. They claimed that in several regions, for instance in
Novosibirsk, Vladimir, Khabarovsk and Kaluga Regions, such
applications lodged by detainees and convicts had proven to be
successful as the prosecution authorities had effectively taken
various measures in order to improve the detention conditions of the
persons concerned.
- Furthermore,
the Government expressed doubts as to the date when the applicant had
lodged his application with the Court.
- As
to the merits of the complaint, the Government stated that the living
space afforded to detainees in the applicant’s cells “had
felt short of standards established in the European Court’s
case-law which had resulted in a violation of the applicant’s
rights guaranteed by Article 3 of the Convention”. They further
submitted that, apart from the overcrowding aspect, his complaint was
unsubstantiated as he had been provided with an individual sleeping
place, had been detained in satisfactory sanitary conditions, had
been properly fed and medically assisted.
- Having
admitted the overcrowding in the applicant’s cells during the
entire period at issue, the national authorities, however, insisted
that they could be held accountable only for the period of six months
that had preceded the date when the applicant had complained to the
Court.
- The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
(a) Exhaustion of domestic remedies
- The
Court reiterates that Article 35 § 1 of the Convention provides
for a distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say that it was accessible, capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success (see Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further
reiterates that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
had already occurred (see Kudła v. Poland [GC], no.
30210/96, § 158, ECHR 2000-XI).
- As
to the effectiveness of the first remedy suggested by the Government,
namely a civil action for damages, the Court notes that in principle
the Russian Civil Code, in particular Articles 151 and 1069, provides
for a possibility of redress in case of appalling detention
conditions. However, the Court takes cognisance of the fact that the
State authorities, in relevant situations, can be held accountable
for damage caused only by their culpable conduct or omission (see
paragraph 16 above). It follows that a person, having brought a
court action against authorities for compensation for unsatisfactory
detention conditions, need to articulate facts and submit evidence
that there was, for instance, a positive intention to humiliate or
debase him or her.
- In
this connection, the Court refers to the recent case of Artyomov
v. Russia in which it examined whether a civil action for
damages can be considered an effective remedy. In that case the
applicant brought three such actions complaining of poor detention
conditions, in three separate periods, in remand prison IZ-39/1 of
Kalingrad. One action was discontinued without the examination on the
merits. Two others were dismissed as being manifestly ill-founded.
The domestic courts’ findings were based on the grounds that,
firstly, the overcrowding, which was the subject of the complaints,
had been caused by a lack of financial resources needed for
reconstruction of, and repair works in, the remand prison; secondly,
the facility administration had not been responsible for the lack of
financing, and, thirdly, the administration could not refuse to admit
detainees “when the maximum capacity of the facility had been
exceeded” (see Artyomov v. Russia, no. 14146/02,
§§16, 18, 31 and 33, 27 May 2010). The Court, having
observed the circumstances of that case and the domestic civil law,
came to a conclusion that as a remedy, civil proceedings for damage
caused by poor detention conditions could rather be considered
theoretical and illusory than adequate and effective in the sense of
Article 35 § 1 of the Convention (see ibid, §§
110-112).
- As
to the possibility to lodge an application to prosecution
authorities, the Court notes that in the present case the Government
listed examples of prosecution authorities’ activity regarding
only four Russian regions out of currently eighty-three. This fact
casts serious doubts as to the availability of this remedy across the
country.
- Furthermore, the Court reiterates that in a number of
Russian cases it has found that problems arising from conditions of
detention, in particular detention in overcrowded remand prisons,
were apparently of a structural nature, for which no effective
domestic remedy had been shown to exist (see Moiseyev v. Russia
(dec.), no. 62936/00, 9 December 2004, Guliyev
v. Russia, no. 24650/02, § 34, 19 June 2008 and
Nazarov v. Russia no. 13591/05, § 77,
26 November 2009). In the recent case Lutokhin v. Russia,
the Court has found a violation of Article 3 on account of
overcrowding in the same facility – IZ-47/1 of St Petersburg –
and approximately at the same time – from 16 April 2001 to 11
March 2003 (see Lutokhin v. Russia, no. 12008/03, §§
8 in fine and 56-59, 8 April 2010).
- With
regard to the foregoing considerations, the Court concludes that the
Government failed to substantiate the effectiveness of the suggested
remedies. Accordingly, it dismisses their plea of non-exhaustion.
(b) Compliance with the six-month rule
- The
applicant’s detention in the remand prison lasted from 30 May
2001 until 2 March 2004. The relevant complaint was lodged with the
Court on 15 March 2004, that is to say within a period of six months
from the date when the continuing situation ended.
- The Court further notes that the complaint relates to
a set of uninterrupted events which took place in the same prison
over a period of two years, nine months and three days. Having regard
to the fact that during the entire period complained of the applicant
was detained in the overcrowded cells (see paragraph 21 above) and to
the Court’s finding that the domestic law and practice did not
provide for an effective domestic remedy available in respect of the
alleged breach (see paragraphs 25-29 above), the Court considers that
the whole period at issue falls within its competence ratione
temporis.
- Accordingly,
the Government’s argument concerning the application of the
six-month rule should be dismissed.
(c) Compliance with other admissibility
criteria and conclusion
- On
the basis of the material submitted, the Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. No other grounds for declaring it
inadmissible have been established. It must therefore be declared
admissible.
2. Merits
- 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, among other authorities, Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000 IV). However, in order to
fall within the scope of Article 3, ill treatment must attain a
minimum level of severity. The assessment of this minimum level of
severity 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 Ireland v. the United Kingdom, 18 January 1978, §
162, Series A, no. 25).
- The
Court reiterates that the suffering and humiliation involved must in
any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment. Measures depriving a person of his liberty may often
involve such an element. Yet it cannot be said that detention on
remand in itself raises an issue under Article 3 of the Convention.
Nevertheless, the State must ensure that a person is detained in
conditions which are compatible with respect for his 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, no. 30210/96, §§
92-94, ECHR 2000-XI).
- 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 m² of personal
space, the Court found that the overcrowding was so severe as to
justify of itself a finding of a violation of Article 3 of the
Convention (see, among many others, Lind v. Russia, no.
25664/05, §§ 59-60, 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, §§ 44-46, 16 June 2005).
- In
the present case the respondent Government admitted that during the
period from 30 May 2001 to 2 March 2004 the applicant had been
detained in the overcrowded cells. They alleged, however, that in
terms of food quality, medical assistance and sanitary conditions,
the applicant’s detention had been in compliance with the
standards set forth in Article 3 of the Convention and applicable
domestic laws.
- The
Court observes that the applicant was detained in four cells, three
of which measured approximately 7,5 m2
and housed seven detainees and the fourth cell measured approximately
21,3 m2 and
housed thirteen detainees. It follows that the capacity of those
cells allowed 1-1,6 m2 of
floor area per inmate. Given the fact that each cell was equipped
with bunks, a dining table, a sink and a lavatory pan which took
their space, it appears that the actual living area per inmate was
dramatically small.
- Having
regard to its case-law on the subject, the material submitted by the
parties and the findings above, the Court concludes that, though not
ill-intended, the detaining of the applicant for two years, nine
months and three days in cramped cells twenty-four hours a day, save
for one-hour daily walk, must have caused him such intense physical
discomfort and mental suffering which the Court considers amounted to
inhuman and degrading treatment within the meaning of Article 3 of
the Convention.
- There
has accordingly been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings in
his case had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention,
which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. The parties’ submissions
- The
Government acknowledged a violation of Article 6 with regard to the
appeal proceedings. They submitted that delays during the period from
25 October 2002 (the date when the applicant had lodged his appeal)
until 11 February 2004 (the date when the appeal hearing had been
held) had been caused by logistical, organisational and financial
difficulties relating to a moving of the appeal court’s judges
from one building to another, a lack of escort officers and the
judge-rapporteur’s sickness.
- The
applicant made no specific comment in that respect.
B. The Court’s assessment
1. Admissibility
- Taking
into account the respondent Government’ submissions, the
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. No other grounds for declaring it
inadmissible have been established. It must therefore be declared
admissible.
2. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the complexity of the case, the conduct of the
applicant and the relevant authorities and, finally, to what was at
stake for the applicant in the dispute (see, among many other
authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II).
- It further notes that that an accused in criminal
proceedings should be entitled to have his case conducted with
special diligence. It has been a consistent approach of the
Conventions institutions that Article 6, in respect of criminal
matters, was designed to avoid that a person charged should remain
too long in a state of uncertainty about his fate (see Nakhmanovich
v. Russia, no. 55669/00, § 89, 2 March 2006).
- The criminal proceedings in the applicant’s
case, from his arrest on 20 May 2001 until his conviction was
confirmed on appeal on 11 February 2004, lasted a total of two years,
eight months and twenty-three days. During that period, the charges
against him were examined twice at two levels of jurisdiction. The
overall length of the proceedings does not, as such, appear
unreasonable. The only phase that gives rise to misgivings is that
between 25 October 2002, when the applicant lodged his appeal, and
11 February 2004, when the appeal court decided to uphold his
sentence. The respondent Government conceded that the delays during
that period should be attributable to the State. The Court sees no
reason to hold otherwise.
- Accordingly there has been a violation of Article 6 of
the Convention.
III. OTHER ALLEGED VIOLATION OF ARTICLE OF THE CONVENTION
- The
applicant raised various complaints under Articles 5 and 6 of the
Convention.
- Having
considered his submissions in the light of all the material in its
possession, the Court finds 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. 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 35,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that these claims were unfounded and generally
excessive.
- The
Court considers that the applicant must have sustained stress and
frustration as a result of the violations found. Making an assessment
on an equitable basis, the Court awards the applicant EUR 15,300
(fifteen thousand three hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant, who was represented before the Court by a lawyer from the
International Protection Centre in Moscow, claimed EUR 1,680 for fees
and costs involved in bringing his application to the Court.
- The
Government submitted that the applicant’s claims were
unsubstantiated and should not, therefore, be granted.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. As regards the fees for the legal
representation in the Strasbourg proceedings, the Court observes that
the applicant was granted EUR 850 in legal aid. It considers that the
applicant did not justify having incurred any expenses exceeding that
amount.
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 centre IZ-47/1 of
St Petersburg and the complaint concerning the excessive length
of the criminal proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 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 15,300 (fifteen
thousand three hundred euros) in respect of non-pecuniary damage, to
be converted into 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
