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FIRST
SECTION
CASE OF GLOTOV v. RUSSIA
(Application
no. 41558/05)
JUDGMENT
STRASBOURG
10
May 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 Glotov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and André Wampach,
Deputy Section
Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41558/05) 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 Aleksey Vladimirovich
Glotov (“the applicant”), on 30 September 2005.
- The
applicant was represented by Mr A. Kirsanov, a lawyer practising in
Moscow. 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
applicant alleged, in particular, that the conditions of his
detention in the Moscow remand prison had been inhuman and degrading.
- On
4 January 2011 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
- On
28 November 2011 and 27 January 2012 the Court requested further
factual information from the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Moscow.
- From
14 March to 6 October 2005 the applicant was held in remand prison
IZ-77/1 in Moscow. He was accommodated in Cell 243 which measured
approximately 11 square metres. The cell had one window and the
toilet was located inside the cell, separated with a brick partition
approximately 1.2 metre in height. It disposed of four sleeping
places. Detainees were allowed one hour of outdoor exercise per day.
- The
parties disagreed on the number of inmates in Cell 243.
- According
to the applicant, Cell 243 was constantly overcrowded. It was
designed for two inmates but actually housed four persons. He
referred to the Court’s findings in respect of the same cell in
the case of Starokadomskiy v. Russia (no. 42239/02, §§
23-24 and 42, 31 July 2008).
- The
Government maintained that the number of detainees in Cell 243 had
not exceeded two persons. In support of their position, they enclosed
with their observations on the admissibility and merits of the case,
a certificate issued by the prison governor on 5 April 2011 and
selected pages from the prison population register covering the
period between 16 March and 6 October 2005.
- On
16 January 2012, further to the Court’s request for more
detailed factual information on the number of detainees in Cell 243,
the Government submitted the following material:
–
a certificate issued by the prison governor on 27 December 2011,
according to which Cell 243 accommodated two persons during the
entire period of the applicant’s detention;
–
an undated certificate from the deputy head of the relevant
department, according to which there were two detainees in Cell 243;
–
every second page from the prison population register covering the
period between 14 March and 30 September 2005.
- On
7 March 2012, in response to the Court’s request for
clarifications about the origin of visible corrections of the number
of detainees in Cell 243 in the prison population register, the
Government submitted that, upon making the enquiries, it had been
established that the procedure for filling out the prison population
register had been breached which had resulted in “careless
filling [out]”, corrections and erasures. The head of the
department who was responsible for overseeing the compliance with the
procedure could not be disciplined because he had retired in 2006.
The Government pointed out that the corrections had not been made
“with a purpose to misrepresent reliable information but
because of carelessness and inattention of the officers of the
pre-trial detention centre”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in remand
prison IZ-77/1 in Moscow 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. Admissibility
- The
Government submitted that the complaint was inadmissible for
non-exhaustion of the domestic remedies because the applicant had not
applied to a court of general jurisdiction with a complaint about
inadequate conditions of detention or a claim for compensation. In
their view, copies of the applicant’s applications to the
Mozhayskiy and Basmannyy District Courts of Moscow and his complaints
to the prison governor and to the head of the Moscow Penitentiary
Service appeared suspicious because the outgoing registration numbers
appeared to be made by the same hand and did not correspond to the
numbering system used in the prison.
- The
applicant responded that he repeatedly brought the inadequate
conditions of his detention to the attention of the national
authorities. The register of detainees’ correspondence showed
that he had lodged no fewer than twenty-three petitions to that
effect.
- 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 many 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
v. Russia, no. 12008/03, § 45, 8 April 2010; Aleksandr
Makarov v. Russia, no. 15217/07, §§ 84-89, 12
March 2009, and Benediktov v. Russia, no. 106/02, §§
27-30, 10 May 2007).
- More
specifically, as regards a civil claim in connection with inadequate
conditions of detention, the Court has 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. 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;
Skorobogatykh v. Russia, no. 4871/03, § §§ 17-18
and 31-32, 22 December 2009; Shilbergs v. Russia, no.
20075/03, §§ 71-79, 17 December 2009; Kokoshkina
v. Russia, no. 2052/08, § 52, 28 May 2009,
and Benediktov, cited above, §§ 29-30).
- 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 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 notes that this complaint is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
- The
applicant maintained his complaint about severe overcrowding in Cell
243, in which he had been held during his stay in the Moscow remand
prison. He stressed that the number of detainees in his cell was
visibly corrected in the copies of the prison population register
produced by the Government and that the actual number of inmates had
been three or more.
- The
Government submitted that there was no violation of Article 3 of the
Convention because the treatment to which the applicant had been
subjected in remand prison IZ-77/1 had not attained the minimum
threshold of severity required for that provision to apply. The
conditions of detention in the remand prison were compatible with the
domestic legal requirements and also with the recommendations of the
Committee for the Prevention of Torture. The number of detainees in
Cell 243 had not exceeded two persons, the applicant included.
- The
Court observes that the applicant had been detained for almost seven
months in Cell 243 of remand prison IZ-77/1 in Moscow. The
measurements of the cell were not in dispute between the parties; it
was accepted that its surface was approximately eleven square metres.
It further appears from the prison population register that the cell
disposed of four sleeping places. However, the parties disagreed on
the number of detainees who had been actually held in the cell,
together with the applicant.
- 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
support of their assertion that the population of Cell 243 was
comprised of two inmates, the Government produced certificates issued
by the prison governor and by one of his deputies, as well as copies
of pages from the prison population register.
- The
certificates from the prison governor did not refer to any data on
the basis of which they may have been prepared. The Court has
repeatedly pointed out that such documents drafted after a
considerable period of time were apparently based on personal
recollections and could not be viewed as sufficiently reliable
sources, given the length of time that has elapsed (see, among other
authorities, Veliyev v. Russia, no. 24202/05, § 127,
24 June 2010; Belashev v. Russia, no. 28617/03, § 52, 4
December 2008, and Igor Ivanov v. Russia, no. 34000/02,
§ 34, 7 June 2007). A further element undermining the
reliability of these certificates is the fact that in the proceedings
on application no. 42239/02, Starokadomskiy v. Russia,
the Government submitted to the Court a similar certificate signed by
the same prison governor on 21 February 2006. It concerned the
conditions of Mr Starokadomskiy’s detention in Cell 243 in
the period from 11 April 2004 to 23 December 2005, that is
during the time when the applicant in the instant case was held in
the same cell. According to that certificate, Mr Starokadomskiy
shared the cell with three – not one – other inmates (see
Starokadomskiy, cited above, § 24). The Government did
not put forward any explanation for this discrepancy between the 2006
and 2011 certificates.
- Turning
next to the copies of the prison population register produced by the
Government, the Court observes that their authenticity was certified
with the prison stamp and the signature of the prison governor.
However, the entries in respect of the number of detainees in Cell
243 were corrected in a visible way, with some figures having been
erased and the number “two” having been written over
instead. The Court requested the Government to furnish explanations
about the origin, reason and timing of these corrections. The
Government responded that the erasures had been the product of
negligence on the part of the prison warders responsible for filling
out the register. They did not indicate at what moment and for what
purpose the information in the register was corrected. The Court
regrets that the inquiry carried out by the Russian authorities did
not elucidate these matters because this failure makes it impossible
to determine whether the corrected data has any probative value. In
these circumstances, the Court considers that the information
contained in the copy of the prison population register produced by
the Government is not sufficiently reliable to establish the facts.
- Furthermore,
in the Starokadomskiy case, the Court established, on the
strength of the evidence produced by the parties, that in the same
period of time Mr Starokadomskiy, one of the applicant’s
cellmates, had been afforded less than three square metres of space
in Cell 243 (see Starokadomskiy, cited above, § 42). The
Government did not put forward any credible material or information
which could have allowed the Court to depart from that finding in the
instant case.
- The
Court has found in many previous cases that where the applicants had
at their disposal less than three square metres of floor surface, the
overcrowding was considered to have been so severe as to justify in
itself a finding of a violation of Article 3 (see Starokadomskiy,
cited above, § 43, and also Svetlana Kazmina v. Russia,
no. 8609/04, § 70, 2 December 2010; Lind
v. Russia, no. 25664/05, § 59, 6 December
2007; Labzov v. Russia, no. 62208/00, § 44,
16 June 2005; and Mayzit v. Russia, no. 63378/00,
§ 40, 20 January 2005). Save for one hour of daily outdoor
exercise, except on the days of court hearings, the applicant was
confined to his cell and was not allowed any out-of-cell activity.
- In
addition, the lavatory pan was placed in the corner of the cell and
was separated from one side only by a brick partition approximately
1.2 metres high. Such close proximity and exposure was not only
objectionable from a hygiene perspective but also deprived the
applicant using the toilet of any privacy because he remained at all
times in full view of other inmates sitting on the bunks and also of
warders looking (compare, among many others, Aleksandr Makarov,
cited above, § 97; Grishin v. Russia, no.
30983/02, § 94, 15 November 2007, and Kalashnikov v. Russia,
no. 47095/99, § 99, ECHR 2002 VI).
- Having
regard to its case-law on the subject, the material submitted by the
parties and the findings above, the Court concludes that the
applicant was obliged to live, sleep and use the toilet in the
overcrowded cell. Even though there is no indication that there was a
positive intention to humiliate or debase the applicant, such
conditions were of themselves sufficient to cause distress or
hardship of an intensity exceeding the unavoidable level of suffering
inherent in detention, and to arouse in him feelings of anguish and
inferiority capable of humiliating and debasing him.
- The
Court finds accordingly that there has been a violation of Article 3
of the Convention on account of the applicant’s conditions of
detention in remand prison IZ-77/1 in Moscow from 14 March to 6
October 2005, which it considers to have been inhuman and degrading
within the meaning of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained of an alleged ill-treatment by the police in
2004, his allegedly unlawful detention after his arrest and of
certain irregularities in the criminal proceedings against him.
- The
Court has examined these complaints as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, it
finds that 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 is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
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 2,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the claim should be rejected because there
had been no violation of the applicant’s rights.
- The
Court has found a violation of Article 3 of the Convention in the
instant case. It considers that the applicant’s suffering and
frustration caused by inhuman and degrading conditions of his
detention cannot be compensated for by the mere finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant the amount he claimed in respect of
non-pecuniary damage, that is EUR 2,000, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim any costs or expenses. Accordingly, there is
no call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant’s detention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant’s conditions of
detention in remand prison IZ 77/1 in Moscow from 14 March to
6 October 2005;
- 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 2,000 (two
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.
Done in English, and notified in writing on 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
