(Application no. 20075/03)
17 December 2009
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 Shilbergs v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
B. Detention in the detention unit of the Neman town police department
1. Conditions of detention
2. Proceedings seeking compensation for damage
“[The applicant’s] argument that his right to the established norm of four square metres of personal space was violated has been amply proven.
The... witnesses confirmed that the detention unit has four cells... Cells nos. 1 and 2 each measure 6 sq. m, cell no. 4 measures 9.8 sq. m and cell no. 3 measures 10.3 sq. m. [The applicant] was detained in cell no. 4: from 20 to 24 August 2001 6 to 7 inmates were detained there, from 3 to 13 September 2001 5 to 7 detainees; from 27 September to 14 October 2001 4 to 6 inmates; from 13 to 18 November 4 to 5 inmates; and from 22 March to 4 April 2002 seven individuals were kept [in that cell]. From May 2002 onwards [the applicant] was detained alone in cells nos. 2 and 3. The registration log, listing the number of persons detained in the unit in specific cells, fully corroborates this account.
[The applicant’s] allegation concerning insufficient lighting was confirmed. The single small window, which is situated right below the ceiling and is covered by two metal sheets with small perforated holes between which a fine metal net is suspended, gives no light. A bulb is situated outside the cell and provides insufficient lighting. The head of the temporary detention unit, Mr L., attempted to carry out renovations in 2001 and artificial lighting was installed in the cells; however, a commission arrived and found that the bulbs had been installed incorrectly, and everything was returned to its previous place...
[The applicant’s] submission pertaining to the absence of artificial ventilation in the cells and the presence of high humidity levels was also proven. The small window covered with metal sheets with a metal net between them barred access to fresh air; in autumn, winter and spring it was even covered with felt cloth.
The allegation concerning the lack of a lavatory pan and water supply system in the cell was also confirmed. They are not installed in the cells; [inmates] were taken out of the cells twice in twenty-four hours, at 6.00 a.m. and 6.00 p.m.; at those times they could also wash their faces; for the rest of the day or night they used a special bucket as [a lavatory pan]. As to [the applicant] he was frequently taken to the toilet for whatever purpose was required.
[The applicant’s] argument concerning the scarcity of food was not refuted. Food was provided in the detention unit once a day. In the morning and evening inmates received tea; lunch was brought in from the municipal cafeteria “Hope” in the afternoon; [lunch] consisted of two courses based on a given sum per inmate. The abovementioned witnesses did not dispute that food had been provided once a day...
The sanitary conditions in the detention unit do not comply with sanitary norms. The record of a sanitary inspection of the cells in the detention unit carried out in 2000-02 was destroyed. However, as is clear from [eight] letters sent by the Neman town temporary detention unit to the Head of the Neman district council and the Neman district sanitary inspector [in 1998, 2001 and 2002], the sanitary conditions did not meet personal hygiene standards. The temporary detention unit did not have a contract ... for cleaning of the premises.
[The applicant’s] argument about the violation of his right to a daily walk was not refuted. Inmates were not allowed outdoor exercise in the detention unit as it does not have a recreation yard.
[The applicant’s] allegation pertaining to a violation of his right to bathe was fully proven. The detention unit does not have a shower room; persons detained in the temporary detention unit cannot take a shower and there is no provision for such a possibility, as individuals cannot be detained in the detention unit for more than ten days; there is no hot water [in the detention unit].
The court considers manifestly ill-founded [the applicant’s] submissions concerning insufficient medical assistance. Medical assistance is provided on request to persons detained in the temporary detention unit: either an ambulance is called or inmates are taken to a doctor. The detention unit has a log recording the initial questioning, examination and provision of medical assistance to individuals detained in the Neman town temporary detention unit. [The applicant] requested medical assistance as follows: twice on 9 October 2001, a body temperature of 37.7 degrees was recorded and a doctor diagnosed him with bronchitis; on 2 February 2002 his blood pressure was taken and treatment was prescribed; on 15 February 2002 a fake incident was recorded; however, medical assistance was subsequently provided and he was sent for examination by a physician; on 18 May 2002 he was diagnosed with an acute ulcer and treatment was prescribed; on 20 May 2002 medical assistance was provided on two occasions and treatment was prescribed; on 9 June 2002 medical assistance was provided; on 23 August 2002 he was examined but no medical assistance was needed.
The [applicant’s] allegation concerning his detention in the unit for more than ten days was confirmed. By virtue of Article 96 § 2 of the RSFSR Code of Criminal Procedure, in force at the time [the applicant] was detained, suspects and accused persons could be placed in temporary detention units ... for no longer than ten days within a given month. The ten-day time-limit for detention in the temporary detention unit was breached twice... He was detained for 17 days from 27 September to 14 October 2001 and for 15 days from 24 August to 8 September 2002. As a result, in September 2001 he stayed in the detention unit for 15 days; in October 2001 [he stayed] for 24 days and in March 2002 for 14 days.
[The applicant’s] allegations pertaining to lack of an individual sleeping place and extreme cold in winter in the cell were proven. All witnesses confirmed that [the applicant] had not had an individual sleeping place and that there had been insufficient heating in winter in the cells. The witnesses disputed [the applicant’s] allegation that he had not been provided with a mattress and pillow; [the witnesses] explained that he had always been provided with a mattress and pillow and had had his own blanket.
Accordingly, the court concludes that [the applicant’s] right to be detained in the temporary detention unit in accordance with the established rules and regulations was breached and that he sustained physical and mental suffering.
[The applicant’s] argument that his health was damaged as a result of the poor conditions of his detention in the Neman town detention unit is not proven.
As is clear from the report of the forensic medical examination performed by the Health Department of the Kaliningrad Region, it is impossible to establish a direct causal link between [the applicant’s] detention in the Neman town temporary detention unit and his illnesses.
In determining the amount of compensation for non-pecuniary damage the court has taken into account the degree of liability of the persons responsible, the insufficiency of funds and the level of physical and mental suffering of [the applicant], and considers it necessary to award 1,500 roubles in compensation.”
C. Detention in facility no. IZ-39/1 in Kaliningrad
1. Conditions of detention
2. Proceedings seeking compensation for damage
“...[it was] established that [the applicant], when in the detention facility, had been held in cells which were designed [to house] six detainees..., in particular in cell no. 16 measuring 7.9 sq. m..., in cell no. 45 measuring 8 sq. m..., in cell no. 57 measuring 7.8 sq. m ... and in cell no. 54 measuring 7.7 sq. m... There are no data on the number of inmates in those cells.
... cells had central heating, water supply, a sewerage system, natural and artificial lighting and artificial ventilation. There were two-tier bunks with bedding in the cells. The lighting in the cells emitted 50-75 lux, and the temperature in the cells satisfied the sanitary requirements and was 18 degrees Celsius above zero... At the material time and at present repair work was/is being performed in cells... Spot-checks of the sanitary conditions in the cells were carried out and no serious violations were established. Detainees clean up their cells once a day (in the mornings)... Medical staff monitored sanitary conditions in cells...
The cells where the applicant was detained had a lavatory pan and a tap. ... the cells had cell furniture. The walls of the cells were smoothly plastered and painted. Metal plates on the windows were installed in accordance with the requirements... Inmates were given no less than fifteen minutes to take a shower... If necessary, following a written request, a detainee could be granted additional opportunities to take a shower.
... Detainees were provided with food in accordance with the norms established by the Government of the Russian Federation...”
Publication in the press and defamation action
“During questioning the driver-thief Artur Shilbergis [the applicant’s last name was misspelled] confessed that his accomplice [the mafia leader] had most probably “been using drugs” and had not understood anything.
The background to that car theft is the following. On 11 May this year three unknown persons in masks broke into the flat of a businessman in Neman. [They] stole 1,800 [US] dollars. Investigators identified the thieves. Mr M. organised the assault, his young girlfriend S. was on guard and three locals committed the robbery. But only one of the five bandits was arrested – Mr Pr. He gave useful statements and a prosecutor let him go on a written undertaking. Right away Mr Pr. began to receive threats prompting him to change his testimony.
On that fateful day Mr M. and the second robber Artur Shilbergis came to Mr Pr.’s home. [They] began banging on the door. The man did not open.
But it appears that Mr Pr. forgot to close the door of his car. The engine roared, and when the man ran out into the street, there was no trace of his friends.”
“In the statement of appeal [the applicant] asks the court to quash the judgment because the [District] court violated his right to “a fair trial” as guaranteed by paragraph 1 of Article 6 of the European Convention, by adjudicating his action in his absence although he had sought leave to appear...
The arguments concerning the violation by the court of the plaintiff’s right to personal attendance at the hearings, as guaranteed by Article 6 § 1 of the European Convention, cannot be accepted as valid because this right applies to criminal cases. As to civil cases, this right is applicable only to cases of a particular type when it is impossible to adjudicate the action in the parties’ absence. In other cases the Convention does not guarantee the right to personal participation in the adjudication of a civil action. In the present case, the plaintiff’s personal participation in the adjudication of the action by the court was not necessary, as the subject-matter of the dispute was a newspaper publication and not something directly related to the plaintiff’s personality.
Moreover, the Russian law in force does not require that plaintiffs who are serving a prison sentence should be brought to hearings for adjudication of their actions.”
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
C. Provisions on attendance at hearings
Provisions on participation of counsel in criminal cases
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
(1) the suspect or the accused has not waived the right to legal representation in accordance with Article 52 of this Code;
(2) the suspect or the accused is a minor;
(3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
(3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
(4) the suspect or the accused does not speak the language in which the proceedings are conducted;
(5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
(6) the criminal case falls to be examined in a jury trial;
(7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
3. In the circumstances provided for by paragraph 1 above, unless counsel is appointed by the suspect or the accused or his lawful representative, or other persons at the request or with the consent of the suspect or the accused, it is incumbent on the investigator, the prosecutor or the court to ensure the participation of legal counsel in the proceedings.”
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the prisoner’s right to legal assistance in such proceedings may be restricted.”
That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. The court found that free legal assistance for the purpose of appellate proceedings should be provided on the same basis as during the earlier stages of the proceedings and was mandatory in the situations listed in Article 51. It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings.
III. RELEVANT INTERNATIONAL DOCUMENTS
General conditions of detention
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN THE DETENTION UNIT OF THE NEMAN TOWN POLICE DEPARTMENT
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
The Court’s assessment
(a) The Government’s objection concerning the applicant’s lack of “victim status”
“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ....”
(i) Principles established under the Court’s case-law
(a) in accordance with the subsidiarity principle, it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention;
(b) a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention;
(c) the applicant’s ability to claim to be a victim will depend on the redress which the domestic remedy will have given him or her;
(d) the principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance. In that connection, it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights but rights that are practical and effective.
(ii) Application of the foregoing principles
(α) The finding of a violation
(β) The characteristics of the redress
(b) Other grounds for declaring this complaint inadmissible
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN FACILITY NO. IZ-39/1 IN KALININGRAD
A. Submissions by the parties
B. The Court’s assessment
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ABSENCE FROM THE HEARINGS IN HIS CIVIL CASES
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...”
A. Submissions by the parties
B. The Court’s assessment
(a) Absence from the hearings
(b) Failure to serve documents on the applicant
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE ABSENCE OF LEGAL ASSISTANCE ON APPEAL IN THE APPLICANT’S CRIMINAL CASE
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
A. Submissions by the parties
The Court’s assessment
“37. The Court further notes that according to the Russian Code of Criminal Proceedings, as interpreted by the Russian Constitutional Court, the onus of appointing a legal aid lawyer rested upon the relevant authority at each stage of the proceedings.
38. Thus it was incumbent on the judicial authorities to appoint a lawyer for the applicant to ensure that the latter received the effective benefit of his rights, notwithstanding the fact that he had failed to request this explicitly. In this respect the Court notes that the applicant never unequivocally waived his defence rights. However, no attempt whatsoever had been made to appoint a lawyer or to adjourn the appeal hearing in order to secure the presence of a lawyer later.
39. In view of the above considerations the Court finds that the proceedings before the Sverdlovsk Regional Court did not comply with the requirements of fairness. There has, therefore, been a breach of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention.”
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 10,500 (ten thousand five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the 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 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis