In the case of Yemelin v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41038/07) 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 Alekseyevich Yemelin (“the
applicant”), on 6 August 2007.
The applicant, who had been granted legal aid,
was represented by Mr T. Misakyan, 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.
The applicant alleged, in particular, that he had
been detained in conditions incompatible with the standards set forth in
Article 3 of the Convention and that the judgment in his favour had not
been enforced.
On 27 May 2010 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Alicante,
Spain.
A. Criminal proceedings against the applicant
On 7 July 2004 the
applicant, a police officer at the time, lent 20,000 Russian roubles (RUB)
to M. The latter failed to repay the loan. On an unspecified date, in order to
make her pay the debt, the applicant tricked M. into giving him her travel
passport.
On 14 January 2007 M. let K., a friend of
the applicant’s, into her flat. K. asked her to repay the loan, which she could
not do. Then the applicant broke into M.’s flat and beat her up. M. sustained a
closed head injury and fractured ribs, and received treatment in hospital.
On 15 January 2007 M. complained about the
beating to the local department of the interior where the applicant was serving
as a police officer. On 19 January 2007 she lodged a complaint with the
prosecutor’s office, alleging that on 14 January 2007 the applicant had
entered her flat against her will.
On 1 February 2007 the prosecutor’s office
opened a criminal investigation into M.’s complaint.
On 5 February 2007 the applicant made an
undertaking not to leave town.
On 9 February 2007 the
Volsk Town Court ordered that the applicant be temporarily removed from office.
The applicant did not appeal.
On 10 February 2007 the applicant was
indicted on charges of unlawful entry and assault with bodily injuries.
On 19 April 2007 the applicant was indicted
on a charge of abuse of power.
On 26 April 2007 the Volsk Town Court
received the case-file.
On 31 May 2007 the applicant gave an
interview to the local newspaper alleging that one of the prosecutor’s
witnesses had a grudge against him and had testified against him out of revenge.
B. Applicant’s pre-trial detention and the verdict
On 15 June 2007 the Volsk Town Court
established that the applicant had made threats to M. and other witnesses with
intent to intimidate them and ordered that the applicant be detained pending
trial. On 2 July 2007 the Saratov Regional Court upheld the decision of
15 June 2007 on appeal.
On 17 August 2007 the Town Court found the
applicant guilty of unlawful entry, assault with bodily injuries and
misappropriation of M.’s passport, and sentenced him to two years’ suspended
imprisonment and a fine. He was released in the courtroom.
On 1 November 2007 the Saratov Regional
Court upheld the applicant’s conviction on appeal.
C. Conditions of detention and transport
From 15 June to 17 August 2007 the
applicant was detained alternately at the temporary detention centre in Volsk
and in remand prison no. IZ-64/1 in Saratov.
1. Temporary detention centre in Volsk
The applicant was detained in cell no. 6 at
the temporary detention centre in Volsk from 15 to 16 June, 27 June
to 3 July, 11 to 19 July and 27 July to 17 August 2007.
(a) Description provided by the Government
According to the Government, the cell where the
applicant was detained measured 5.85 sq. m and contained two beds. During
the first two periods of detention the applicant was held in the cell alone.
During the second two periods another inmate was held there with the applicant.
The cell had no windows and was lit with a 200-watt electric bulb. Nor was the
cell equipped with a toilet; the inmates had to use a bucket, which was placed
some 1.5 metres from the beds and 3.5 metres from the dining table. There was
no screen separating the “toilet zone” from the rest of the cell. The temporary
detention centre had no exercise yard and inmates detained there had to stay in
their cells all the time.
(b) Description provided by the applicant
According to the applicant, he was detained in a
windowless cell measuring 1.3 sq. m. The cell was not equipped with a
toilet or running water. The applicant had to use a bucket placed in the cell as
both a toilet and a sink. He was allowed to empty the bucket once a day. The
mattress and a pillow given to him were dirty and smelt foul. No bed linen was
provided. The cell was infested with rats. The ventilation system was on for no
more than forty minutes a day. The constant fetid smell in the cell made the
applicant sick and gave him headaches. When it rained, water leaked into one of
the corners and flooded the cell. The concrete floors were always damp. The
walls were covered with mould. Because of the dampness of the cell, the
applicant developed painful breathing.
There was no access to natural light. The cell
was lit with a 40-watt electric bulb. The temporary detention centre had no outdoor
exercise area and the applicant was confined to the cell for twenty-four hours
a day. Breakfast consisted of hot water only. For dinner the inmates received
cold leftovers from lunch. The food served for dinner often turned sour owing
to the lack of refrigerators in the temporary detention centre.
2. Remand prison no. IZ-64/1 in Saratov
(a) Description provided by the Government
The Government’s submissions as regards the
conditions of the applicant’s detention in remand prison no. IZ-64/1 in
Saratov can be summarised as follows:
|
Period
of detention
|
Cell
no.
|
Surface
area (in square metres)
|
Number
of inmates
|
Number
of beds
|
|
From 16 to 18 June
|
|
2
|
-5
|
|
|
From 19 to 26 June
|
|
1
|
|
|
|
From 4 to 10 July
|
|
2
|
-5
|
|
July
|
|
2
|
-5
|
|
|
From 21 to 24 July
|
|
05
|
|
|
|
From 24 to 26 July
|
|
05
|
|
|
Each cell had one window which ensured access to
daylight. The windows were covered with metal bars with 200-sq. cm openings.
All the cells in the remand prison were equipped with a ventilation system in
good working order. The electric lighting was constantly on. From 6 a.m. to 10 p.m.
the cells were lit with a 100-watt bulb and from 10 p.m. to 6 a.m. with a
40-watt bulb for safety and surveillance purposes.
Each cell had a water closet separated from the
living area with a 1.5-metre high partition. The distance between the toilet
and the beds/dining table was at least 2 metres. The inmates had the right to
daily outdoor exercise lasting at least an hour.
(b) Description provided by the applicant
The applicant did not dispute the Government’s
submissions as regards the periods of his detention in the remand prison and the
numbering of the cells where he had been detained. He provided the following additional
data regarding the size of the cells and the number of inmates:
|
Cell
no.
|
Surface
area (in square metres)
|
Number
of inmates
|
|
2
|
|
|
|
|
|
|
-4
|
|
|
|
Each cell had a window covered with three layers
of metal bars with 100-sq. cm openings. The window ensured access to daylight. The
electric light was constantly on. There was no dining table in cell no. 117.
The toilet was located in the corner of the cell no more than 1.5 m from the
dining table and no more than 2 m from the nearest bed. The toilet was
separated with brick walls without a door and offered no privacy. The
ventilation system was not effective enough to evacuate the smell emanating
from the toilet. No hot water was supplied; nor was there cold running water between
5.45 a.m. and noon. The inmates were allowed one hour’s outdoor exercise per
day, which was cancelled in the event of rain. The food was of very poor
quality and scarce. The pickled cabbage was rancid and smelled bad, the
potatoes were black and rotten. The milk turned sour immediately or contained
grey residue. The fish was rotten. No fruit or vegetables were served.
According to the applicant, all the letters he
sent to his family and friends were opened and censored.
3. Conditions of transport
(a) Description provided by the Government
According to the Government, on the days of the
applicant’s transfer between the remand prison and the temporary detention
centre, he was provided with a dry food ration. He received 300 grams of
biscuits, 30 grams of soup concentrate, 168 grams of main-course
concentrate, 40 grams of sugar and 2 grams of tea. The inmates were placed
in special vans and taken to the railway station. Being a former police officer,
the applicant was placed in a van compartment alone. The travel time did not
exceed twenty minutes. Upon arrival at the station, the inmates were placed in
railway carriages. At all times, the applicant had an individual sleeping
place. The train journey lasted from six to eight hours. The applicant was
provided with hot water to be used with the food concentrates and drinking
water. He was allowed to use the toilet. At the destination railway station,
the inmates were again placed in vans and taken to the respective detention
facility.
(b) Description provided by the applicant
According to the applicant, on the days on which
he was transported between the remand prison and temporary detention centre,
notably 27 June, 3, 11, 19 and 27 July 2007, the journey lasted from
eight to sixteen hours. No food was provided. The inmates were placed in
compartments measuring 1.2 to 2 square metres. During the first four transfers
there were three inmates in the compartment, including the applicant, and
during the fifth transfer there were four inmates, including the applicant.
There were three berths in the compartment measuring 1.2 square metres and the
applicant had to share his sleeping place with another inmate. During the
journey, the detainees were given water once and were allowed to use the toilet
once. For the rest of the time they had to use plastic bags or bottles in the
compartment to answer calls of nature. The toilet in the railway carriage had
no sink.
The applicant submitted two statements from
inmates V. and N. who had been transported with him on 3 and 11 July 2007
respectively. Both V. and N. confirmed the applicant’s description of the
conditions in which they had been transported. In particular, V. submitted as
follows:
“... on 3 July 2007 [the applicant] and myself were placed
in a railway carriage ... to be transferred to remand prison no. IZ-64/1
in Saratov. We arrived at Saratov at around 2 a.m. (the journey lasted sixteen
hours). During the trip we were allowed to use the toilet once and we received
water once. We were held in a compartment measuring 2 square metres equipped
with three berths. Other amenities, food or hot water were not available.”
D. Civil proceedings initiated by the applicant and
enforcement of the judgment in his favour
Following his removal from office pending
criminal proceedings (see paragraph 11 above), the applicant brought a claim
against the local department of the interior for lost earnings.
On 26 September 2007 the
Frunzenskiy District Court of Saratov granted the applicant’s claim and ordered
the local department of the interior to pay to the applicant a monthly
allowance in the amount of RUB 7,806.70 during his temporary removal from
office, and for court and legal expenses.
On 23 October 2007 the District Court
amended the operative part of the judgment of 26 September 2007 and ruled
that the local department of the interior should pay the applicant RUB 36,833.14
for unlawful temporary removal from office for the period between 1 July
and 1 November 2007.
On 15 November 2007 the
Saratov Regional Court upheld the judgment of 26 September 2007 on appeal.
On 13 December 2007 the bailiff received
the writ of execution.
It appears that there were certain technical
errors in the text of the writ of execution and on 27 February 2008 the
applicant asked the District Court to rectify them.
On 18 March 2008 the District Court ordered
the local department of the interior to pay the applicant arrears totalling
RUB 36,833.17 in connection with the authorities’ failure to execute the
judgment of 26 September 2007. On an unspecified date the applicant
forwarded the relevant writ of execution to the bailiff’s office.
On 21 April 2008 the bailiff closed the
enforcement proceedings and returned both writs of execution to the applicant,
noting that the execution of the judgments in the applicant’s favour was not
within the competence of the bailiff’s office.
On 25 September 2009 the District Court
clarified the content of the judgment of 26 September 2007 and ordered the
local department of the interior to pay the applicant arrears in the amount of
RUB 68,059.90 for the period from 9 February to 1 November 2007.
On an unspecified date the applicant asked the
court to adjust the amount of the award in view of the lengthy period of non-enforcement
of the judgments in his favour and to award him RUB 83,901.53 for lost
earnings, RUB 1,248 for court expenses and RUB 1,000 for legal
expenses.
On 28 October 2009 the District Court granted
the applicant’s claim and awarded him RUB 84,846.45, broken down as
follows: RUB 82,597 for lost wages; RUB 1,248 for reimbursement of
court expenses (travel and postage); and RUB 1,000 for reimbursement of legal
expenses.
On 22 April 2010 the applicant sent the
writ of execution to a federal treasury department. On 18 May 2010 the sum
of the award was transferred to his account.
E. Criminal proceedings against M.
1. Libel
On 5 February 2008 the applicant instituted
criminal proceedings against M., accusing her of libel.
On 22 May 2007 the justice of the peace
delivered a not-guilty verdict. On an unspecified date the verdict was upheld
on appeal. On 9 October 2008 the Saratov Regional Court held a cassation
hearing and upheld the verdict and the appeal judgment.
2. Perjury
On 21 January 2009 the prosecutor’s office
refused to prosecute M. on perjury charges.
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
. The
Federal Law on Detention of Suspects and Defendants charged with Criminal
Offences, as amended (“the Detention of Suspects Act”), in force since 21 June
1995, provides that suspects and defendants detained pending investigation and
trial are held in remand prisons (section 8). They may be transferred to temporary
detention centres if so required for the purposes of investigation or trial and
if transportation between a remand prison and a police station or courthouse is
not feasible because of the distance between them. Such detention at a
temporary detention centre may not exceed ten days per month (section 13).
Temporary detention centres at police stations are designated for the detention
of persons arrested on suspicion of a criminal offence (section 9).
. According
to the Internal Regulations of Temporary Detention Facilities, approved by
Order No. 41 of the Ministry of the Interior of the Russian Federation on 26
January 1996, as amended (in force at the time of the applicant’s detention),
the living space per detainee should be 4 square metres (paragraph 3.3 of the regulations).
It also made provision for cells in a temporary detention centre to be equipped
with a table, toilet, water tap, shelf for toiletries, drinking water tank, radio
and refuse bin (paragraph 3.2 of the regulations). Furthermore, the regulations
made provision for detainees’ right to outdoor exercise of at least one hour
per day in a designated exercise area (paragraphs 6.1, 6.40, and 6.43 of the regulations).
B. Remedies in respect of
non-enforcement of a judgment against the State
50. Federal Law No. 68-FZ of 30 April 2010 (in force as
of 4 May 2010) provides that in the event of a violation of the right to
enforcement of a final judgment, the person concerned is entitled to seek compensation
in respect of non-pecuniary damage. Federal Law No. 69-FZ adopted on the same day
introduced the pertinent changes to the Russian legislation.
51. Section 6.2 of
Federal Law No. 68-FZ provides that everyone who has an application pending
before the European Court of Human Rights concerning a complaint of the nature
described in the law has six months to submit that complaint to the domestic
courts.
III. RELEVANT INTERNATIONAL
DOCUMENTS
52. The relevant
extract from the 2nd General Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
(CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is in
principle of relatively short duration ... However, certain elementary material
requirements should be met.
All police cells should be of a
reasonable size for the number of persons they are used to accommodate, and
have adequate lighting (i.e. sufficient to read by, sleeping periods excluded)
and ventilation; preferably, cells should enjoy natural light. Further, cells
should be equipped with a means of rest (e.g. a fixed chair or bench), and
persons obliged to stay overnight in custody should be provided with a clean
mattress and blankets.
Persons in custody should be allowed to
comply with the needs of nature when necessary in clean and decent conditions,
and be offered adequate washing facilities. They should be given food at
appropriate times, including at least one full meal (i.e. something more
substantial than a sandwich) every day.
43. The issue of what is a
reasonable size for a police cell (or any other type of detainee/prisoner
accommodation) is a difficult question. Many factors have to be taken into
account when making such an assessment. However, CPT delegations felt the need
for a rough guideline in this area. The following criterion (seen as a
desirable level rather than a minimum standard) is currently being used when
assessing police cells intended for single occupancy for stays in excess of a
few hours: in the order of 7 square metres, 2 metres or more between
walls, 2.5 metres between floor and ceiling.”
. The
CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002)
15, § 47).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
. The
applicant complained about the conditions of his detention in remand prison no.
IZ-64/1 in Saratov and the temporary detention centre in Volsk from 15 June
to 17 August 2007. He also complained about the conditions in which he was
transported between the remand prison and temporary detention centre. He
referred to 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 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. Parties’ submissions
. The
Government did not contest that the conditions of the applicant’s detention in
the temporary detention centre in Volsk had fallen short of the requirements of
the national standards and the recommendations of the CPT. At the same time,
the Government considered that the fact that the applicant had been detained in
such conditions did not show that there had been a positive intention to
humiliate or debase him. They further submitted that there were objective
reasons for the domestic authorities’ failure to ensure that the applicant was
held in proper conditions at the temporary detention centre in connection with
the on-going reform of the detention facilities. Lastly, they argued that the
treatment to which the applicant had been subjected as a result of his
detention in the temporary detention centre had not gone beyond the threshold
of severity set out in Article 3 of the Convention. As regards the conditions
of the applicant’s detention in the remand prison and the conditions in which
he was transported between those two detention facilities, the Government asserted
that they had been in compliance with domestic and international standards. The
relied on excerpts from the remand prison population register and statements
prepared by the administration of the remand prison in July 2010. They
also submitted copies of receipts confirming the provision of the applicant
with dry food ration on the days of his transfers from one detention facility
to the other.
. The
applicant maintained his complaint. He submitted a statement made by V. and N.,
the inmates detained and transported together with him. In the applicant’s view,
the domestic authorities had failed to ensure that his detention during the
period in question had been compatible with the requirements set out in
Article 3 of the Convention. His pre-trial detention and the appalling
conditions in which he had been transported had amounted to inhuman and
degrading treatment prohibited by the said Article and had resulted in serious
damage to his health.
2. Court’s assessment
(a) General principles
The general principles concerning the conditions
of detention are well established in the Court’s case-law and have been
summarised as follows (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012):
“139. 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).
140. 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).
141. 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, cited above, §§ 92-94, and Popov
v. Russia, no. 26853/04, § 208, 13 July
2006).
142. 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).”
(b) Temporary detention centre in Volsk
. The
Court notes that it has already examined the conditions of detention in temporary
detention centres in various Russian regions and found them to be in breach of
Article 3 (see Khristoforov v. Russia, no. 11336/06, §§ 22-29, 29 April 2010; Nedayborshch v. Russia, no. 42255/04, §§ 27-33, 1 July 2010; Salikhov v. Russia, no. 23880/05,
§§ 89-93, 3 May 2012; and Velichko v. Russia, no. 19664/07, §§ 54-60, 15 January 2013).
. The
Government did not challenge the applicant’s account of the conditions of his
detention in the temporary detention centre. They conceded that those
conditions had fallen short of the requirements of national standards and the
recommendations of the CPT.
. On
the facts, the Court notes that the cell in which the applicant was repeatedly
held lacked basic amenities. It did not have a window and offered no access to
natural light or air. There was no toilet or sink. If the applicant wished to
go to toilet, he had to use a bucket. Lastly, throughout his detention the
applicant was confined to his cell for twenty-four hours a day without any
opportunity to pursue physical and other out-of-cell activities.
. The
Court observes that the circumstances of the present case are very similar to
those examined in the earlier case of Nedayborshch
where the applicant was detained during multiple periods lasting from an
overnight to four consecutive days totalling thirty-six days in overcrowded
cells of a temporary detention centre without a toilet or running water or
an opportunity for an outdoor exercise (see Nedayborshch, cited above,
§§ 9-16). In Nedayborshch
the Court has found such conditions incompatible
with the standards set out in Article 3 of the Convention. It discerns
nothing in the materials before it that would allow it to reach a different
finding in the present case.
. The
Court takes into account the Government’s argument that in the present case
there was no positive intention to humiliate or debase the applicant. However,
the absence of any such intention cannot exclude a finding of a violation of
Article 3 of the Convention. Even if there had been no fault on the part of the
administration of the temporary detention facility, it should be emphasised
that Governments are answerable under the Convention for the acts of any State
agency, since what is at issue in all cases before the Court is the
international responsibility of the State (see, among other authorities, Novoselov v. Russia, no. 66460/01,
§ 45, 2 June 2005).
. There
has accordingly been a violation of Article 3 of the Convention on account of
the degrading conditions of the applicant’s detention in the temporary
detention facility in Volsk on several occasions between 15 June and
17 August 2007.
(c) Remand prison no. IZ-64/1 in Saratov
. The
Court observes that the parties agree on the periods of the applicant’s
detention in the remand prison, the cell numbers and measurements. The Court
further notes that the Government submitted excerpts from the prison population
register to substantiate their submissions as regards the number of inmates in
the cells where the applicant was detained. The authenticity of the data
contained in the excerpts was not disputed by the applicant. Accordingly, the
Court accepts as credible the Government’s submissions as regards the
population of the cells in the remand prison where the applicant was detained
and finds that the personal space afforded to the applicant at all times during
his detention in the remand prison exceeded 4 square metres. The Court also
takes into account the fact that the applicant did not allege that an
individual bed was not provided to him or that he had been unable to move
freely around the cell.
. The
Court further notes that the thrust of the applicant’s complaint was poor hygiene
conditions in the cells and the scarcity and poor quality of the food. The Court,
however, is unable to determine, on the basis of the material submitted by the
parties, that those aspects of the conditions of the applicant’s detention were
such as to amount to degrading or inhuman treatment.
. Thus,
on the basis of the materials before it, the Court concludes that there has
been no violation of Article 3 of the Convention on account of the
conditions of the applicant’s detention in remand prison no. IZ-64/1 in
Saratov (compare Andrei Georgiev v. Bulgaria, no. 61507/00,
§§ 57-62, 26 July 2007).
(d) Conditions of transport between the detention
facilities
. As
to the conditions in which the applicant was transported, the Court notes that
he has endured some distress and hardship during the transfers between the
remand prison and the temporary detention centre. However, having examined the
parties’ submissions and the available material, and regard being had, in
particular, to the number and length of the transfers from one detention
facility to the other, the Court does not consider that the conditions endured
by the applicant have reached an intensity “exceeding the unavoidable level of
suffering inherent in detention”. There has therefore been no violation of
Article 3 of the Convention on account of the conditions in which the applicant
was transported between the detention facilities.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1
AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The applicant complained that the judgment in
his favour had not been enforced in good time. He relied on Article 3 of
the Convention. The Court will examine the complaint under
Articles 6 § 1 of the Convention and Article 1 of Protocol
No. 1. The Court also decided, of its own motion, to
examine this issue under Article 13 of the Convention. The relevant provisions
of the Convention read, in so far as relevant, as follows:
Article 6
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention
are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. Admissibility
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. Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1
The Government admitted that the judgments in
the applicant’s favour had been enforced with two-and-a-half years’ delay. They
suggested, however, that the applicant had partially contributed to the
excessive length of the enforcement proceedings. In particular, on
27 February 2008 he asked the District Court to forward the writs of
execution to the bailiff’s office, whereas he knew that the enforcement of the
judgments in his favour was to be carried out by the treasury. Lastly, they
conceded that the applicant’s failure to follow the procedure prescribed for
execution of the judgments against the State could have been accounted for in
part by objective factors, such as the reform of the State system of execution
of judgments.
The applicant considered that the delays in
enforcement of the judgments in his favour had amounted to a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1.
. The
Court reiterates that an unreasonably long delay in the enforcement of a
binding judgment may breach the Convention (see Burdov v. Russia,
no. 59498/00, ECHR 2002-III). To decide if the
delay was reasonable, it will look at the complexity of the enforcement
proceedings, the behaviour of the applicant and the authorities, and the nature
of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).
. The
Court further reiterates that a person who has obtained a judgment against the
State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). Where a judgment is against the
State, the defendant State authority must be duly notified thereof and is
thus well placed to take all necessary initiatives to comply with it or to
transmit it to another competent State authority responsible for compliance
(see Akashev v. Russia, no. 30616/05, § 21, 12
June 2008). The complexity of the domestic enforcement
procedure or of the State budgetary system cannot relieve the State of its
obligation under the Convention to guarantee to everyone the right to have a
binding and enforceable judicial decision enforced within a reasonable time
(see Burdov v. Russia (no. 2), no. 33509/04, § 70, ECHR 2009). Where
the creditor’s cooperation is required, it must not go beyond what is strictly
necessary and in any case does not relieve the authorities of their obligation
under the Convention to take timely and ex officio action, on the basis of the information available to them, with
a view to honouring the judgment against the State (see Akashev, cited above,
§ 22).
. The
Court observes that in the instant case the judgment of 26 September 2007
was enforced only on 18 May 2010. It notes that the enforcement
proceedings were not particularly complex, given the nature of the award, and
that no significant delays can be attributed to the applicant. On the other
hand, the Court does not lose sight of the fact that the execution of the
judgment called for clarification and amendment of the original text. The Court
considers that the delays that resulted from those actions are attributable to
the domestic judicial authorities. Furthermore, the fact that the enforcement
proceedings at the material time were so complex does not relieve the State of
its obligation to act in accordance with the principles cited above. In
particular, once the authorities were in possession of the writ of execution,
it was open to them to adopt a more practical approach and to forward the
document to the responsible body. Consequently, despite the applicant’s failure
to indicate properly the State body responsible for the execution of the
judgments in his favour, the full responsibility for enforcement of the court
judgment rests with the State.
. In
view of the above, the Court considers that the authorities failed to comply
with their obligation under the Convention and that there has accordingly been
a violation of Article 6 § 1 of the Convention and of Article 1 of
Protocol No. 1.
2. Article 13 of the Convention
. The
Government considered that the applicant had had an effective remedy in
connection with lengthy non-enforcement of the judgments in his favour. In
particular, it was open to him to ask the court to adjust the sum of the award.
In fact, the applicant’s relevant claim was successful and granted in part by
the domestic court. Furthermore, it remained open to the applicant to lodge a
civil action seeking non-pecuniary damage resulting from the lengthy
non-enforcement of the judgments in his favour as provided for by the applicable
legislation.
. The
applicant considered that no effective remedy was available to him at the
domestic level.
. The
Court takes cognisance of the existence of a new remedy introduced by Federal Laws
Nos. 68-FZ and 69-FZ in the wake of the pilot
judgment adopted in the case of Burdov (no.
2), cited above. Those statutes, which entered into
force on 4 May 2010, set up a new remedy enabling those concerned to seek
compensation for the damage sustained as a result of excessive delays in the
enforcement of court judgments against the State (see paragraph 50 above).
. The
Court accepts that as from 4 May 2010 and until 4 November 2010 the applicant
had a right to use the new remedy (see paragraph 51 above), which, however, he did
not pursue.
. The
Court observes that, in the pilot judgment cited above, it stated that it would
be unfair to request applicants whose cases have already been pending for many
years in the domestic system and who have come to seek relief at the Court, to
bring their claims again before the domestic tribunals (see Burdov (no. 2), cited above, § 144). In
line with that principle, the Court decided to examine the complaint about
non-enforcement of the final judgment in the applicant’s favour on its merits
and found a violation of the substantive provisions of the Convention.
. However,
the fact of examining the present case on its merits should in no way be
interpreted as prejudging the Court’s assessment of the quality of the new
remedy. It will examine this question in other cases that are more suitable for
such analysis. It does not see fit to do so in the present case, particularly
as the parties’ observations were made in relation to the situation that had
existed before the introduction of the new remedy.
. Having
regard to those special circumstances, the Court does not consider it necessary
to examine separately the complaint under Article 13 of the Convention in
the present case (see, among other authorities, Tkhyegepso and
Others v. Russia, nos. 44387/04, 2513/05, 24753/05, 34770/07, 37169/07,
54527/07, 21648/08, 42081/08, 56022/08, 59873/08, 671/09 and 4555/09, §§19-24, 25 October 2011).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 3 of the Convention that his unlawful removal from office and his allegedly
unfair criminal prosecution had been seriously detrimental to his health. He
further complained, under Articles 5 and 6 of the Convention, that his pre-trial
detention had been unlawful. He complained under Article 6 of the
Convention about the unfairness of his removal from office, the criminal
proceedings against him and M.’s acquittal. Referring to Article 8 of the
Convention, he alleged that the letters he had sent from prison had been
subjected to censorship. Lastly, he submitted, with reference to Article 10
of the Convention, that he had been remanded in custody because of an interview
he had given to a local newspaper.
. Having
regard to all the material in its possession and in so far as it falls within
its competence, the Court finds that the evidence discloses 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 (a) 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 54,475 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive.
The Court takes into account that it has found a
violation of the applicant’s rights set out in Articles 3 and 6 of the
Convention and Article 1 of Protocol No. 1. However, it accepts the
Government’s argument that the applicant’s claim appears excessive. Making its
assessment on an equitable basis, it awards the applicant EUR 5,000, plus
any tax that may be chargeable, in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed 8,833.80 Russian
roubles (RUB) for the costs and expenses incurred before the Court. In
particular, he had paid (1) RUB 6,000 to a second lawyer he retained
to be represented before the Court; (2) RUB 1,004.40 for travel from
his place of residence to Moscow and back to meet with Mr T. Misakyan to
discuss the case and to sign an authority form, and (3) RUB 1,829.40
for postage.
The Government considered that, in view of the
poor quality of the copies of the relevant receipts submitted by the applicant,
such documents could not be accepted as proof that the costs and expenses had
actually been incurred.
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 are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession, the above criteria and the
fact that legal aid has been granted to the applicant, the Court rejects
the claim for costs and expenses in the proceedings before the Court.
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
1. Declares the complaints concerning the
conditions of the applicant’s detention in the temporary detention centre in
Volsk and remand prison no. IZ-64/1 in Saratov, the conditions in which he
was transported between those two detention facilities, and the non-enforcement
of the final judgment in his favour admissible and the remainder of the application
inadmissible;
2. Holds that
there has been a violation of Article 3 of the Convention on account of the applicant’s
detention in the temporary detention centre in Volsk on
several occasions between 15 June and 17 August 2007;
3. Holds that there has been no violation of
Article 3 of the Convention on account of the applicant’s detention in remand
prison no. IZ-64/1 in Saratov or the conditions in which he was transported
between the temporary detention centre in Volsk and remand prison
no. IZ-64/1 in Saratov;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 in respect of the delayed enforcement of the judgment in the
applicant’s favour;
5. Holds that
there is no need to examine the complaint under Article 13 of the Convention;
6. 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 5,000
(five thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency
of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 October
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Isabelle
Berro-Lefèvre
Deputy Registrar President
