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DANILIN v. RUSSIA - 4176/03 [2010] ECHR 1298 (16 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1298.html
Cite as:
[2010] ECHR 1298
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FIRST
SECTION
CASE OF DANILIN v. RUSSIA
(Application
no. 4176/03)
JUDGMENT
STRASBOURG
16
September 2010
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 Danilin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4176/03) 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 Zakhar Olegovich Danilin
(“the applicant”), on 8 January 2003.
The
applicant was represented by Mr Oleg Danilin, a lawyer practising in
Moscow. The Russian Government (“the
Government”) were represented by Mrs V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged, in particular, that the conditions of his
detention had been appalling, that his pre-trial detention had been
unlawful, that the criminal proceedings against him had been unfair
and the authorities had erred in application of the domestic law.
On
5 April 2007 the President of the First Section decided to
communicate the complaint concerning the applicant's conditions of
detention to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1979 and lives in Moscow.
A. Criminal proceedings against the applicant
In
April 2000 the authorities brought criminal proceedings against the
applicant on suspicion of robbery. During the trial the applicant was
also accused of theft.
By
a judgment of 20 July 2001 the Zelenogradskiy District Court (“the
District Court”) convicted the applicant on both counts.
The
applicant appealed against the judgment and on 23 October 2001 the
Moscow City Court (“the City Court”) quashed the
conviction on appeal and remitted the case for a fresh examination at
the first instance.
On
4 June 2002 the District Court again convicted the applicant of
robbery and theft and sentenced him to nine years' imprisonment.
The
applicant's appeal against the judgment was dismissed by the City
Court on 9 July 2002.
On
15 April 2004 the City Court, acting by way of supervisory review,
upheld the judgment of 4 June and the decision of 9 July 2002 in part
relating to the count of robbery and quashed the rest of the
applicant's conviction.
The
court established that there had been various irregularities in the
criminal proceedings in so far as they related to the count of theft
and, in particular, the fact that the applicant had not been given a
reasonable opportunity to prepare his defence and state his case
properly. The applicant was accordingly acquitted on this charge and
the overall sentence was reduced to five years.
B. The applicant's conditions of detention prior to the
criminal proceedings
The
applicant was taken into custody by the authorities on 6 April 2000
and remained in pre-trial detention until 19 July 2002.
From
6 April 2000 to 26 July 2001 and from 22 November 2001 to 9 June
2002 the applicant was held in pre-trial detention centre IZ-77/5 in
the city of Moscow (“SIZO no.5”).
From
26 July to 22 November 2001 and from 9 June to 19 July 2002 the
applicant was detained in pre-trial detention centre IZ-77/3 in the
city of Moscow (“SIZO no. 3”)
1. The applicant's account
The
applicant submitted that throughout his detention the cells in SIZO
no. 5 and SIZO no. 3 had been heavily overcrowded and that the
prisoners had had to take turns to sleep.
In
both prisons the cells were dirty and lacked ventilation. The
applicant also submits that the food was of poor quality.
2. The Government's account
In
respect of SIZO no. 5 the Government submitted that the applicant had
been held in cells 205 (measuring 25.3 square metres and containing
two windows and ten sleeping places), 303 (measuring 37.1 square
metres and containing three windows and fourteen sleeping places),
312 (measuring 33.5 square metres, containing two windows and twelve
sleeping places), 322 (measuring 27.4 square metres) and 403
(measuring 36.8 square metres, containing three windows and fourteen
sleeping places).
The
Government were unable to provide the Court with original
documentation concerning numbers of prisoners detained in SIZO no. 5
along with the applicant. They relied on record no. 50/5-8 dated 31
March 2006 of the administration of SIZO no. 5 confirming the
destruction of the relevant prison records in this respect.
As
to SIZO no. 3, the Government submitted that the applicant had been
detained in cells 213 (measuring 28.5 square metres, containing two
windows and twenty-eight sleeping places) and 608 (measuring 32.7
square metres, containing two windows and thirty-two sleeping
places.)
The
Government submitted that there had been twenty-five to twenty-eight
detainees in cell 213 along with the applicant and were unable to
provide information in respect of detainees in cell no. 608. They
relied on record no. 176 dated 16 February 2004 issued by
administration of SIZO no. 3 and confirming the destruction of the
relevant prison records.
The
Government submitted that the applicant had been provided at all
times with an individual sleeping place and bed linen. All cells had
been naturally and artificially ventilated and lit. The cells had
been equipped with heating devices and regularly cleaned with toilet
facilities having been partitioned with a wall. The applicant
underwent regular medical examinations.
II. RELEVANT DOMESTIC LAW
A. Rules on the prison regime in pre-trial detention
centres (as approved by Ministry of Justice Decree no. 148 of 12 May
2000)
Rule
42 provided that all suspects and accused persons in detention had to
be given, among other things: a sleeping place; bedding, including a
mattress, a pillow and one blanket; bed linen, including two sheets
and a pillow case; a towel; tableware and cutlery, including a bowl,
a mug and a spoon; and clothes appropriate to the season (if the
inmate had no clothes of his own).
Rule
44 stated that cells in pre-trial detention centres were to be
equipped, among other things, with a table and benches to seat the
number of inmates detained there, sanitation facilities, running
water and lighting for use in the daytime and at night.
Rule
46 provided that prisoners were to be given three hot meals a day, in
accordance with the norms laid down by the Government of Russia.
Under
Rule 47 inmates had the right to have a shower at least once a week
for at least fifteen minutes. They were to receive fresh linen after
taking their shower.
Rule
143 provided that inmates could be visited by their lawyer, family
members or other persons, with the written permission of an
investigator or an investigative body. The number of visits was
limited to two per month.
B. Order no. 7 of the
Federal Service for the Execution of Sentences dated 31
January 2005
Order no. 7 of the Federal Service for the Execution
of Sentences of 31 January 2005 deals with the implementation of
the “Pre-trial detention centres 2006” programme.
The
programme is aimed at improving the functioning of pre-trial
detention centres so as to ensure their compliance with the
requirements of Russian legislation. It expressly acknowledges the
issue of overcrowding in pre-trial detention centres and seeks to
reduce and stabilise the number of detainees in order to resolve the
problem.
Amongst those affected, the programme mentions
pre-trial detention centres SIZO no. 3 and SIZO no. 5. In particular,
the programme states that on 1 July 2004 SIZO no. 3 had a capacity of
1,109 inmates and in reality housed 1,562 detainees, in other words,
48.9% more than the permitted number. The programme also mentions
SIZO no. 5, stating that on 1 July 2004 the detention centre had a
capacity of 1,117 inmates but actually housed 1,495 detainees, or
33.8% more than the permitted number.
III. Relevant Council
of Europe documents
The
relevant extracts from the General Reports of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
“46. Overcrowding is an issue of direct
relevance to the CPT's mandate. All the services and activities
within a prison will be adversely affected if it is required to cater
for more prisoners than it was designed to accommodate; the overall
quality of life in the establishment will be lowered, perhaps
significantly. Moreover, the level of overcrowding in a prison,
or in a particular part of it, might be such as to be in itself
inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities
(work, education, sport, etc.) is of crucial importance for the
well-being of prisoners ... [P]risoners cannot simply be left to
languish for weeks, possibly months, locked up in their cells, and
this regardless of how good material conditions might be within the
cells. The CPT considers that one should aim at ensuring that
prisoners in remand establishments are able to spend a reasonable
part of the day (8 hours or more) outside their cells, engaged in
purposeful activity of a varied nature ...
48. Specific mention should be made of
outdoor exercise. The requirement that prisoners be allowed at least
one hour of exercise in the open air every day is widely accepted as
a basic safeguard ... It is also axiomatic that outdoor exercise
facilities should be reasonably spacious ...
49. Ready access to proper toilet facilities
and the maintenance of good standards of hygiene are essential
components of a humane environment ...
50. The CPT would add that it is particularly
concerned when it finds a combination of overcrowding, poor
regime activities and inadequate access to toilet/washing facilities
in the same establishment. The cumulative effect of such conditions
can prove extremely detrimental to prisoners.
51. It is also very important for prisoners
to maintain reasonably good contact with the outside world. Above
all, a prisoner must be given the means of safeguarding his
relationships with his family and close friends. The guiding
principle should be the promotion of contact with the outside world;
any limitations upon such contact should be based exclusively on
security concerns of an appreciable nature or resource considerations
...”
Extracts from the 7th General Report [CPT/Inf (97)
10]
“13. As the CPT pointed out in its 2nd
General Report, prison overcrowding is an issue of direct relevance
to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46).
An overcrowded prison entails cramped and unhygienic accommodation; a
constant lack of privacy (even when performing such basic tasks as
using a sanitary facility); reduced out-of-cell activities, due to
demand outstripping the staff and facilities available; overburdened
health-care services; increased tension and hence more violence
between prisoners and between prisoners and staff. This list is far
from exhaustive.
The CPT has been led to conclude on more than one
occasion that the adverse effects of overcrowding have resulted in
inhuman and degrading conditions of detention ...”
Extracts from the 11th General Report [CPT/Inf (2001)
16]
“28. The phenomenon of prison
overcrowding continues to blight penitentiary systems across Europe
and seriously undermines attempts to improve conditions of detention.
The negative effects of prison overcrowding have already been
highlighted in previous General Reports ...
29. In a number of countries visited by the
CPT, particularly in central and eastern Europe, inmate accommodation
often consists of large capacity dormitories which contain all or
most of the facilities used by prisoners on a daily basis, such as
sleeping and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation arrangements
in closed prisons and those objections are reinforced when, as is
frequently the case, the dormitories in question are found to hold
prisoners under extremely cramped and insalubrious conditions ...
Largecapacity dormitories inevitably imply a lack of privacy for
prisoners in their everyday lives ... All these problems are
exacerbated when the numbers held go beyond a reasonable occupancy
level; further, in such a situation the excessive burden on communal
facilities such as washbasins or lavatories and the insufficient
ventilation for so many persons will often lead to deplorable
conditions.
30. The CPT frequently encounters devices,
such as metal shutters, slats, or plates fitted to cell
windows, which deprive prisoners of access to natural light and
prevent fresh air from entering the accommodation. They are a
particularly common feature of establishments holding pre-trial
prisoners. The CPT fully accepts that specific security
measures designed to prevent the risk of collusion and/or criminal
activities may well be required in respect of certain prisoners ...
[E]ven when such measures are required, they should never involve
depriving the prisoners concerned of natural light and fresh air. The
latter are basic elements of life which every prisoner is entitled to
enjoy ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the conditions of his detention pending
criminal proceedings had been deplorable. The Court will examine
these grievances under Article 3, which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions of the parties
The
Government submitted that the applicant had failed to exhaust
available domestic remedies. According to them, he could have applied
to the domestic courts with claims for compensation in respect of any
nonpecuniary damage allegedly resulting from the conditions of
his detention. The Government also considered that the conditions of
detention in the prisons concerned had not been incompatible with
Article 3 of the Convention.
The
applicant disagreed, and maintained his complaints.
B. The Court's assessment
1. Admissibility
In as much as the Government
claim that the applicant has not complied with the rule on exhaustion
of domestic remedies, the Court finds that the Government have not
specified with sufficient clarity the type of action which would have
been an effective remedy in their view, nor have they provided any
further information as to how such action could have prevented the
alleged violation or its continuation or provided the applicant with
adequate redress. Even if the applicant, who at the relevant time was
still in detention pending trial, had been successful, it is unclear
how the claim for damages could have afforded him immediate and
effective redress. In the absence of such evidence and having regard
to the abovementioned principles, the Court finds that the
Government have not substantiated their claim that the remedy or
remedies the applicant allegedly failed to exhaust were effective
ones (see, among other authorities, Kranz
v. Poland, no. 6214/02, §
23, 17 February 2004, and Skawinska
v. Poland (dec.), no. 42096/98, 4
March 2003). For the above reasons, the Court finds that this
part of the application cannot be rejected for nonexhaustion of
domestic remedies (see also Popov v. Russia, no. 26853/04, §§
204-06, 13 July 2006; Mamedova v. Russia, no. 7064/05, §§
55-58, 1 June 2006; and Kalashnikov v. Russia (dec.), no.
47095/99, ECHR 2001 XI (extracts)).
In the light of the parties' submissions, the Court
finds that the applicant's complaints raise serious issues of fact
and law under the Convention, the determination of which requires an
examination of the merits. The Court concludes that these complaints
are not manifestly illfounded within the meaning of Article 35 §
3 of the Convention. No other grounds for declaring them inadmissible
have been established.
2. Merits
Having
observed the documents submitted by the parties, the Court finds that
the case file contains sufficient documentary evidence to confirm the
applicant's allegations of severe overcrowding in pre-trial detention
facilities SIZO no. 3 and SIZO no. 5 in Moscow, which is in itself
sufficient to conclude that Article 3 of the Convention has been
breached.
The
Court would note that as regards both detention centres the existence
of a deplorable state of affairs may be inferred from the information
contained in Order no. 7 of the Federal Service for the Execution of
Sentences of 31 January 2005 (see paragraphs 28 and 30 above), which
expressly acknowledges the issue of overcrowding in these detention
centres in 2004.
The Court also observes that in its judgments in the
cases of Belevitskiy v. Russia, no. 72967/01, §§
73-79, 1 March 2007; Benediktov v. Russia, no. 106/02, §§
31-41, 10 May 2007; Igor Ivanov v. Russia, no. 34000/02,
§§ 3041, 7 June 2007; Sudarkov v. Russia, no.
3130/03, §§ 40-51, 10 July 2008; Belashev
v. Russia, no. 28617/03, §§
50-60, 4 December 2008; Novinskiy v. Russia, no.
11982/02, §§ 106-08, 10 February 2009; Bychkov
v. Russia, no. 39420/03, §§
33-43, 5 March 2009; and Buzhinayev v. Russia,
no. 17679/03, §§ 26-36, 15 October 2009, it
has previously examined the conditions of detention in SIZO no. 3 in
2000-2003 and found them to have been incompatible with the
requirements of Article 3 of the Convention on account of severe
overcrowding.
Since
the Government did not support its own submissions with reference to
any original documentation, the Court is prepared to accept the
indications given as sufficient confirmation of the applicant's point
that the overcrowding of cells was a problem in both detention
facilities at the time the applicant was detained there.
The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq.,
ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§
44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§§ 41 et seq., 2 June 2005; Mayzit v. Russia,
no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov
v. Russia, no. 47095/99, §§ 97 et seq., ECHR
2002-VI; and Peers v. Greece, no. 28524/95, §§
69 et seq., ECHR 2001-III).
Having regard to its case-law on the subject and the
material submitted by the parties, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Although in the present case there is no indication that there was a
positive intention to humiliate or debase the applicant, the Court
finds that the fact that the applicant had to spend two years, three
months and thirteen days in overcrowded cells in SIZO no. 3 and SIZO
no. 5 in Moscow was itself 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 fear, anguish and
inferiority capable of humiliating and debasing him.
There has therefore been a violation of Article 3 of
the Convention as the Court finds the
applicant's detention to have been inhuman and degrading within the
meaning of this provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In so far as the applicant also complained that his
detention had been unlawful, the Court notes that these grievances
have been brought too late. The applicant was
convicted at first instance on 14 June 2002, whilst the application
in this connection was introduced on 8 January 2003, which is more
than six months later. In addition, the applicant failed to raise
these complaints before the competent domestic authorities,
as required by Article 35 § 1 of the Convention.
As
regards the proceedings in his criminal case, the applicant
complained that his trial had been unfair, that the courts had
assessed the evidence and interpreted the domestic law wrongly and
had used inadmissible evidence for his conviction. In this connection
the Court reiterates that it is not its function to deal with errors
of fact or of law allegedly committed by national courts unless and
in so far as they may have infringed rights and freedoms protected by
the Convention. While Article 6 guarantees the right to a fair
hearing, it does not lay down any rules on the admissibility and
assessment of evidence, which are primarily a matter for regulation
under national law (see, among other authorities, Khan v. the
United Kingdom, no. 35394/97, § 34, ECHR 2000 V).
Furthermore, it is not the role of the Court to determine, as a
matter of principle, whether a particular piece of evidence is
necessary or essential to decide a case (see, for example, Elsholz
v. Germany [GC], no. 25735/94, § 66, ECHR 2000 VIII)
or, indeed, whether or not the applicant is guilty. The question
which must be answered is whether the alleged defects impaired the
fairness of the proceedings, taken as a whole. On the basis of the
materials submitted by the applicant, the Court notes that he,
personally and through his defence counsel, was fully able to present
his case and contest the evidence that he considered false. Having
regard to the facts as submitted by the applicant, the Court has not
found any reason to believe that the proceedings did not comply with
the fairness requirement of Article 6 of the Convention.
It
follows that this part of the application should be rejected pursuant
to Article 35 §§ 1, 3 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
compensation of 50,000 euros (EUR) in respect of non-pecuniary
damage.
The Government submitted that
this claim was unfounded and generally excessive.
The Court considers that the
applicant must have sustained stress and frustration as a result of
the violation found. Making an assessment on an equitable basis, the
Court awards the applicant EUR 13,500 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
The applicant also claimed 5,650
United States dollars (USD) and 31,000 Russian roubles (RUB) for
the legal costs incurred in the domestic proceedings before the
Court.
The Government contested the
applicant's claim.
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.
Having regard to the material in its possession, the Court considers
it reasonable to award the applicant the sum of EUR 300 for the legal
expenses incurred in relation to the proceedings before the Court,
plus any tax that may be chargeable to the applicant on that amount.
C. Default interest
The Court considers it
appropriate that the default interest should be based on the marginal
lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the conditions
of the applicant's detention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 13,500 (thirteen
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 300 (three hundred euros) in
respect of legal costs, plus any tax that may be chargeable to the
applicant, both sums to be converted into Russian roubles at the rate
applicable on 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
