CASE OF TOMAYLY v. RUSSIA
(Application no. 25604/06)
17 September 2015
This judgment is final but it may be subject to editorial revision.
In the case of Tomayly v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 25 August 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 25604/06) 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 Valeriy Petrovich Tomayly (“the applicant”), on 20 June 2006.
2. The applicant was represented by Mr V. Okhramenko, 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.
3. On 21 December 2012 the application was communicated to the Government.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1961 and lives in Korenovsk.
5. Between 6 October 2005 and 21 December 2005 the applicant was held in remand prison IZ-23/1 in Krasnodar. The prison was overcrowded. Thus, the applicant’s cell measuring eighteen sq. m was equipped with four sleeping places and accommodated up to eight inmates; cell 187 measuring ninety-six sq. m was designed for twenty-eight individuals and housed up to thirty-six prisoners.
6. On 19 October 2005 the Korenovskiy District Court of the Krasnodar region convicted the applicant of embezzlement and sentenced him to five years and six months’ imprisonment. On 21 December 2005 the Krasnodar Regional Court upheld the judgment on appeal.
7. Between 21 December 2005 and 20 April 2006 the applicant served his sentence in the IK-9 facility, a correctional colony located in the Krasnodar Region. The dormitory in which the applicant slept measured 198 sq. m, it offered forty-nine sleeping places but actually accommodated up to seventy inmates.
I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
8. On 14 January 2014 the Government submitted a unilateral declaration inviting the Court to strike the application out of its list of cases. They acknowledged that between 21 December 2005 and 20 April 2006 the applicant had been detained in conditions which did not comply with the requirements of Article 3 of the Convention and offered to pay a sum of money.
9. By letter of 6 December 2014, the applicant rejected the Government’s proposal. He disagreed, in particular, with the amount of the proposed compensation.
10. Having studied the terms of the Government’s unilateral declaration, the Court observes that the Government’s acknowledgement of a violation did not cover the applicant’s detention in the remand prison. As to the amount of compensation, the Court reiterates that, whereas the method of calculation does not have to follow exactly the guidelines established by the Court in the pilot judgment (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 172, 10 January 2012), what is important is that the proposed sums are not unreasonable in comparison with the awards made by the Court in similar cases. Without prejudging its decision on the admissibility and merits of the case, the Court considers that the declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Sorokin v. Russia, no. 67482/10, 10 October 2013).
11. For the above reasons, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
12. The applicant complained that the conditions of his detention in the IZ-23/1 remand prison and in the IK-9 facility had violated Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
13. 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.
14. The Government acknowledged that the applicant’s conditions of detention in the IK-9 facility between 21 December 2005 and 20 April 2006 did not comply with the requirements of Article 3 of the Convention. They did not dispute the applicant’s factual submissions and failed to produce any document proving otherwise. The applicant maintained his complaints.
15. On the strength of the applicant’s description of the relevant facts, which the Government did not dispute, the Court finds that he did not have a sleeping place he could call his own and also suffered from serious overcrowding, both in the remand prison IZ-23/1 and in the correctional colony IK-9. The detainees had at their disposal less than three square metres of floor surface (see paragraphs 5 and 7 above). These elements are sufficient to enable the Court to consider that the conditions of the applicant’s detention in both facilities amounted to inhuman and degrading treatment (see Ananyev and Others, cited above, §§ 145-148; Kulikov v. Russia, no. 48562/06, § 37, 27 November 2012; and Yepishin v. Russia, no. 591/07, § 65, 27 June 2013).
16. There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention between 6 October 2005 and 20 April 2006.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
17. As to the remainder of the application, the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. 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.”
19. The applicant claimed 257,666 euros (EUR) in respect of pecuniary and non-pecuniary damage.
20. The Government did not submit comments on the applicant’s claim.
21. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Having regard to its case-law in similar cases, it awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of his claim.
B. Costs and expenses
22. The applicant also claimed costs and expenses in an unspecified amount.
23. The Government did not submit comments on this claim.
24. 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. The Court notes, regard being had to the documents in its possession and the above criteria, that the applicant failed to specify and substantiate his claim for costs and expenses, and therefore no award can be made under this head (see Goriany v. Austria, no. 31356/04, § 39, 10 December 2009).
C. Default interest
25. 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. Rejects the Government’s request to strike the application out of the Court’s list of cases;
2. Declares the complaint regarding the conditions of the applicant’s detention from 6 October 2005 to 20 April 2006 admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 3 of the Convention;
(a) that the respondent State is to pay the applicant, within three months EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Khanlar Hajiyev
Deputy Registrar President