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BAZJAKS v. LATVIA - 71572/01 [2010] ECHR 1551 (19 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1551.html
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[2010] ECHR 1551
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THIRD
SECTION
CASE OF
BAZJAKS v. LATVIA
(Application
no. 71572/01)
JUDGMENT
STRASBOURG
19
October 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 Bazjaks v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 71572/01) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a “permanently resident non-citizen”
of the Republic of Latvia, Mr Igors Bazjaks (“the applicant”),
on 29 May 2001.
The
Latvian Government (“the Government”) were represented by
their Agent, Mrs I. Reine.
The applicant alleged, in particular, that the
conditions of his detention in Daugavpils prison had amounted to
inhuman and degrading treatment and that he lacked an effective
remedy in that regard.
On 26 November 2004 the President of the Third Section
decided to give notice of the application to the Government and to
invite them to submit written observations concerning the complaints
under Articles 3 and 13 of the Convention. It was also decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and lives in Daugavpils.
A. The applicant's initial arrest and pre-trial
detention
On 2 June 1998 the applicant was arrested by the police
on suspicion of rape and brought to the Ventspils Police Department.
The applicant contended that he had been beaten by police officers
immediately after his arrest and later during police questioning. On
the same day he was placed in custody in a cell in the Ventspils
Police Department.
According to the applicant, the cell where he was
placed was dirty and infested with fleas and bedbugs. Food was
limited to one meal per day and the drinking water had a strong taste
of bleach. Moreover, receiving food parcels from relatives was
prohibited. It was impossible for the applicant to keep himself clean
because of the lack of water and personal hygiene products. In order
to prevent him from writing complaints, his pen and paper were
seized.
Between
2 and 4 June 1998 the applicant was questioned by the police without
being represented by a lawyer. A State-appointed lawyer assisted the
applicant during questioning from 4 June 1998 onwards.
In
the course of the pre-trial investigation and after its completion,
the applicant allegedly filed numerous complaints with the Ventspils
Public Prosecutor's Office and with other State authorities,
complaining about the conditions in which he had been held and his
ill-treatment by the police. However, according to him, he received
only standard replies and no investigation was carried out. On 25
November 1998 the applicant filed a complaint with the Kurzeme
Regional Public Prosecutor's Office complaining about the conditions
of his detention. On 26 November 1998, in reply to his complaint, a
prosecutor stated that the facts complained of, such as the alleged
lack of personal hygiene products and the inability to wash, fell
outside the competence of the Prosecutor's Office. On an unspecified
date the applicant announced a hunger strike to protest against the
conditions of his detention.
Later, the applicant was transferred to the Ventspils
Police short-term detention facility. On 18 November 1998 he
submitted a complaint to the Ventspils Public Prosecutor's Office
complaining about misconduct on the part of one of the police
officers on duty. On 26 November 1998 a prosecutor visited the
applicant and found his complaints unsubstantiated.
According to the applicant, on 26 November 1998,
immediately after the prosecutor's visit, the same police officer on
duty, while giving the applicant a bottle of water through the
security hatch in the cell door, sprayed gas in his face and shut the
ventilation outlets. During the next six hours, at some forty-minute
intervals, he poured gas into the cell from gas canisters through the
ventilation outlets and subsequently shut them. The applicant and his
cellmate asked for the ventilation outlets to be opened; the police
officer agreed on condition that the applicant withdrew his
complaint.
On
29 November 1998 the applicant applied to the Kurzeme Regional
Public Prosecutor's Office complaining about the aforementioned facts
and seeking to institute criminal proceedings against the police
officer. It appears that no investigation was carried out in respect
of the facts complained of and that the applicant was not provided
with any reply.
B. The applicant's trial
On
13 January 1999 the Kurzeme Regional Court found the applicant guilty
of the aggravated rape and sexual assault of a fifteen-year-old girl
and sentenced him to ten years' imprisonment. The applicant appealed.
On
4 March 1999 the Criminal Chamber of the Supreme Court, after
having held a hearing, upheld the assessment of evidence by the trial
court. However, the appellate court amended the judgment, ordering
the applicant to pay the victim 4,000 Latvian lati (LVL) for
non-pecuniary damage. The applicant was represented by a
State-appointed lawyer before the first-instance court and the
appellate court.
The
applicant then lodged an appeal on points of law. On 11 May 1999 the
Senate of the Supreme Court declared the appeal inadmissible for lack
of arguable points of law. The applicant sought to initiate an
extraordinary supervisory review of this decision; however, on 14
June 1999 the Office of the Prosecutor General dismissed his
application.
C. The applicant's detention
1. Jelgava prison
On 6 June 1999 the applicant was transferred to
Jelgava prison to continue serving his sentence, and remained there
until 22 November 2000. On admission he underwent a medical
examination; according to the medical report, he was a drug addict
and suffered from venereal disease, spondylosis, dermatitis and
gastric problems. The Government maintained, and the applicant
himself did not deny, that he received the necessary medical
treatment. While in Jelgava prison, he was punished on thirty-two
occasions for various disciplinary offences. The last of these
penalties was imposed on him on 18 July 2000.
From
12 to 14 April 2000, the Prison Administration carried out a general
inspection of Jelgava prison. Detainees were questioned about the
conditions of their detention; no specific complaints were received.
According
to the documents submitted by the Government, during a cell
inspection carried out on 18 July 2000 the applicant behaved
aggressively towards the prison guards, used threatening gestures and
obscene language. Three guards who had performed the cell inspection
subsequently filled in and signed the report form intended for such
purposes; however, the applicant himself refused to give
explanations, he only noted that he did not speak Latvian and that he
did not have trust in the prison guards. The chief supervisor of the
relevant prison wing then recommended punishing him with solitary
confinement in an isolation cell (soda
izolators); the supervisor's report includes a comment
according to which the prison doctor examined the applicant and found
him fit to undergo the punishment. By a decision taken on the same
day, 18 July 2000, the prison governor imposed a punishment of
fifteen days' isolation on the applicant, starting from the next day.
On
the next day, 19 July 2000, after having been transferred to an
isolation cell, the applicant was reported again to be behaving
aggressively; he also declared a hunger strike. He was then
handcuffed for an unspecified amount of time. As on the previous day,
three prison guards in charge of the disciplinary unit wrote a
disciplinary report. The applicant explained that he had had a
“nervous outburst”. It appears that the applicant
received no separate punishment for this incident.
The
applicant contends that on numerous occasions he applied to various
State authorities including the Specialised Public Prosecutor's
Office, seeking an investigation into the allegedly unlawful
disciplinary penalties imposed on him. On 4 October 2000 he was
visited by a prosecutor with whom he discussed this matter. According
to the Government, the applicant indeed complained to the
aforementioned Prosecutor's Office – but not to any other
authority – on 14, 24, 30 and 31 October 2000. However, it
cannot be inferred from the case file that in his complaints he
actually mentioned the numerous disciplinary penalties imposed on
him. These four complaints were forwarded to the Prison
Administration, which replied to him by a letter of 21 November 2000
signed by its director; there is no mention of any disciplinary
penalty in it.
On
7 November 2000 the applicant complained about the alleged
unlawfulness of the disciplinary penalty imposed on him on 18 July
2000. On 24 November 2000, a prosecutor of the Specialised Public
Prosecutor's Office dismissed his complaint, finding that the
impugned punishment had been justified.
On
4 and 14 November 2000 the applicant filed new complaints with the
Specialised Public Prosecutor's Office, the content of which has not
been disclosed to the Court. The Government inferred that the
applicant had been complaining about management problems in Jelgava
prison. By a letter of 15 December 2000 the competent prosecutor
replied to him, advising him to submit details of any disputes with
the chief supervisor of the wing to the prison governor prior to
writing to the Prison Administration or the Prosecutor's Office.
According to the applicant, on an unspecified date at
the end of 2000 he was again placed in a disciplinary cell, where a
group of prison guards handcuffed him and then beat, clubbed and
kicked him. In the course of the assault the applicant fell to the
floor, hit his head against the floor and lost consciousness. After
that, he suffered from a violent headache and vomited. Subsequently,
a prison doctor examined the applicant and noted a traumatic
displacement of his left-side facial bones; however, the applicant
remained in the disciplinary cell and no medicines were given to him.
The applicant provided a short synopsis of his medical history, drawn
up and certified by three members of the medical staff of Grīva
prison; this document does not mention any such trauma. Nevertheless,
the applicant insisted that the beating had indeed taken place,
despite being unable to give the exact date. He claimed to have
addressed numerous complaints to various authorities, including the
Prosecutor General, requesting that criminal proceedings be
instituted against the prison guards allegedly involved in the
beating incident; however, no investigation was carried out and the
applicant did not receive any reply to his complaints. The Government
denied these allegations.
At
the request of the governor of Jelgava prison, the director of the
Prison Administration on 14 November 2000 approved the applicant's
transfer to Daugavpils prison to continue serving his sentence. It
appears that on 22 November 2000 the applicant was transferred to the
Central Prison Hospital in Rīga and
that he stayed there until 11 January 2001.
The applicant also contended that on an unspecified
date in 2001 he had undergone an X-ray examination of his skull in
the Central Prison Hospital. The results of this examination
allegedly confirmed the traumatic displacement of his left-side
facial bones and revealed a trauma to his right hand, loss of hearing
in his left ear and a damaged retina in his right eye. He claimed
that doctors had refused to operate on him or even to report his
injuries to the Prosecutor General. As he had expressed
dissatisfaction with the conduct of the doctors, he was subsequently
penalised and placed in a disciplinary cell where he allegedly did
not receive any medical assistance or treatment. The medical synopsis
submitted by the applicant (see paragraph 23 above) does not mention
any such examination, and there is no other document in the case file
to confirm these statements.
2. Daugavpils prison and subsequent imprisonment
Between 11 January 2001 and 26 January 2002 the
applicant served his sentence in Daugavpils prison. During that
period, he was punished on twenty occasions for various
disciplinary offences, including on six occasions by solitary
confinement, inter alia, for being intoxicated with drugs. The
conditions of detention in Daugavpils were generally poor, the food
was of poor quality and of insufficient quantity and the detainees
were not provided with any personal hygiene products.
Between
8 November and 21 December 2001 the applicant was kept in a
special segregation unit of the prison. According to him, the cell
where he was placed together with other detainees was located in the
prison basement and had no daylight. The cell was very humid and cold
since its windows were unglazed and since the central heating pipes
and radiators gave off no heat. It was in a poor state of repair,
dirty and infested with insects and rats. Furthermore, it lacked hot
water and was not even equipped with a washbasin; hence, the
applicant was unable to keep himself clean. His clothes were never
taken to the prison laundry, so that he was obliged to wear the same
underwear for two months. As there was no drinking water supply, the
detainees were forced to drink water from the toilet flush or from a
bucket intended for the same purpose. The cell was inadequately
furnished as there was no dining table or furniture for keeping
personal belongings, and no cutlery. The Government did not submit
any comments in this regard.
The applicant asserted that he had applied to the
prison authorities, various State officials and the Prosecutor
General complaining about the conditions of detention but had not
received any answer. Moreover, according to the applicant, his
complaints gave rise to abuse from prison staff: he was verbally
assaulted, threatened with violence, his warm clothes were taken off
him and false reports were made about him. The Government denied that
the applicant ever complained about the conditions of his detention.
On 21 December 2001 the applicant declared a
hunger strike to protest against the conditions of his detention. He
was immediately punished with solitary confinement and placed in
disciplinary cell no. 22. According to the applicant, this cell had
no windows, no ventilation system and no washbasin. It was overrun by
insects and rats. No toiletries and bedding were provided, and the
applicant's request for some boiled water was refused. At night, the
applicant slept on a folding bunk bed which was fixed to the wall
during the day so that it was impossible to lie down or sit on it in
daytime. If the applicant felt unwell during the day, he was forced
to lie on the floor. Moreover, he allegedly fainted several times
because of the extremely stale air in the cell and he complained
about this to the prison staff, but in vain. Each morning the cell
was searched; he was consequently ordered to strip naked and brought
out into the corridor, where he was humiliated by the prison staff.
According to the Government, the applicant's allegation of daily
strip-searches was wholly unsubstantiated.
The
applicant submitted that on the tenth day of his confinement he was
visited by a prison doctor who, instead of providing any kind of
medical assistance, informed him that he would be kept in these
conditions until he agreed to give up his hunger strike.
The
applicant further alleged that on the thirteenth day of his hunger
strike he was transferred to disciplinary cell no. 14. This cell
was very cold, since its window contained only empty panes without
glass. On the next day, the applicant allegedly fainted again,
collapsed on the floor and wounded his forehead on the metal rim of
the bunk bed. Shortly afterwards he was examined by a prison doctor
who declared that he should lie down in bed. However, this indication
appears not to have been followed and the applicant remained in the
disciplinary cell in the same conditions.
The
Government did not comment on most of the facts described above,
merely observing that there were “no solitary confinements or
any other special cells for those who have announced a hunger strike
in Daugavpils prison”.
On
4 January 2002 the applicant discontinued his hunger strike for
health reasons. According to him, on 7 January 2002 he lodged a
complaint with the Prosecutor General complaining of the allegedly
unlawful disciplinary penalties imposed on him and of his inhuman
treatment in Daugavpils prison. The applicant did not specify whether
he received any answer to this complaint. The Government denied this
assertion; according to them, the last complaint during this period
was made by the applicant on 26 March 2001, was addressed to the
Inspector General of the Ministry of Justice (Tieslietu
ministrijas ģenerālinspektors) and related only to
restrictions on receiving food parcels from relatives. The applicant
claimed that he had subsequently been threatened by the deputy prison
governor, who warned him that that he would be subjected to even
worse conditions if he continued to complain.
On
25 January 2002 the applicant was released from the disciplinary
cell. Shortly thereafter he was admitted to the Central Prison
Hospital in Rīga to undergo medical
treatment for tuberculosis. In April 2002 he left hospital and was
transferred to Grīva prison, where he continued serving his
sentence until his release on 2 June 2008. The applicant submitted
that the medical assistance in that prison had not been appropriate
to his condition; he did not, however, provide any details or
descriptions in that regard.
II. RELEVANT INTERNATIONAL LEGAL MATERIAL AND DOMESTIC LAW
A. The European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
Following the first visit to Latvia between 24 January
and 3 February 1999 the European Committee for
the Prevention of Torture and Inhuman and Degrading Treatment or
Punishment (“CPT”) published its report on 22 November
2001. The relevant parts of the CPT's report concerning that
visit read as follows:
“91. At the outset of the visit, the Minister of
the Interior and senior officials from the Prison Department
highlighted serious problems facing the Latvian prison system: a
rising prison population, which had led to overcrowding and hence a
deterioration in conditions of detention; lack of work, education and
leisure opportunities for prisoners; shortage of staff; and a
dramatic spread of tuberculosis amongst the prison population.
...
144. Tuberculosis was identified as a major
problem by both the representatives of the Prison Department and the
health care teams at the prisons visited. They stressed that in
recent years, there had been a significant increase in the number of
tuberculosis cases, attributed primarily to prison overcrowding and
to the shortage of appropriate sanitary means to control the disease.
It was also stated that the tuberculostatic medicines currently
available on the market were costly, while the range available was
decreasing. Also, the number of cases of resistance to
tuberculostatic medicines in Latvia's prisons was said to be rising
(at the time of the visit, approximately 22% of all prisoners
suffering from tuberculosis were resistant to at least two of the
first-line tuberculostatic medicines).
The CPT fully shares the concerns voiced by the
above-mentioned persons. Unless adequately treated, tuberculosis is a
life-threatening disease. The prison authorities therefore have a
clear obligation to ensure adequate methods of prevention and
detection, and to provide appropriate treatment.”
Following
its second periodic visit to Latvia between 25 September and
4 October 2002, the CPT published its report on 10 May 2005.
While the principal objective of the visit to Jelgava prison was to
review the conditions of detention of life-sentenced prisoners, a
full visit was carried out to Daugavpils prison. At the outset, the
CPT stated that it was very concerned by the lack of progress since
the previous visit, which had taken place in 1999 and “[was]
obliged to reiterate many of its previous recommendations concerning
prison issues” (see the relevant report, document
CPT/Inf (2005)8, paragraph 6).
The relevant parts of the CPT's report concerning the
visit to Latvia between 25 September and 4 October 2002 read as
follows:
“65. The CPT noted that the legal standards for
the provision of living space to prisoners in Latvia had recently
been slightly increased to 2.5 m² per person for male adult
prisoners and to 3.5 m² per person for female and juvenile
prisoners. Whilst acknowledging this development, the Committee must
emphasise that the new standards still do not offer a satisfactory
amount of living space (cf. also paragraph 93 of the report on the
1999 visit). The CPT therefore recommends that the above-mentioned
legal standards be raised as soon as possible, so as to guarantee at
least 4 m² per prisoner in multiple-occupancy cells, and that
official capacities and occupancy levels of cells in Latvian prisons
be revised accordingly.
66. Daugavpils [p]rison, which was
built in 1861 in the city centre, is a closed prison for male
prisoners (sentenced and on remand). Its official capacity had
recently been increased from 543 to 800 inmates. At the time of the
visit, the establishment was holding 762 prisoners, of whom 310 were
sentenced and 443 on remand (including 24 juveniles). In addition,
nine sentenced prisoners, held in a semi-open regime, were assigned
to work in the establishment.
...
73. At Daugavpils [p]rison, the three
buildings accommodating prisoners were overall in a poor state of
repair. Further, most cells were poorly ventilated, and some of them
had no access to natural light (the windows being covered by metal
plates). In addition, cells were frequently overcrowded, in
particular those accommodating remand prisoners (e.g. 40m2
for 21 prisoners; 12.5m2
for six prisoners).
Material conditions were particularly poor in the
“quarantine” unit, where up to six newly-arrived, sick
and/or vulnerable prisoners were being held in cells measuring some
10 m². The cells were very humid, cold and had no access to
natural light. Further, no or only very thin mattresses were supplied
to prisoners, and toilets were not partitioned. The delegation,
however, noted that some steps were being taken to refurbish the
“quarantine” unit; this refurbishment should be completed
as a matter of priority.
...
75. [In Daugavpils prison], the poor hygienic
conditions were exacerbated by the fact that prisoners were not
provided with any personal hygiene products (e.g. soap,
toothbrush, toilet paper, etc.) and that indigent prisoners
were not always provided with proper clothing.
...
77. Finally, in [Daugavpils prison], many prisoners
claimed that until shortly before the CPT's visit the occupancy
levels had been significantly higher and that, on occasion, the
number of prisoners had exceeded the number of beds available. It is
axiomatic that such a state of affairs would be unacceptable; the
principle of one prisoner - one bed should be respected at all times.
78. At Daugavpils [p]rison, hardly any out-of-cell
activities were offered to sentenced prisoners. At the time of the
visit, a one-year vocational training programme for masonry and
painting was organised, with an option to acquire externally
recognised diplomas, but only 22 out of 310 inmates could
participate. Regrettably, a four-year Latvian language course and a
two-year educational programme had been discontinued in 2002. The CPT
is particularly concerned that prisoners serving long sentences were
excluded from the above-mentioned activities.
...
80. In [Daugavpils prison], prisoners were
obliged to take their outdoor exercise in small concrete cubicles
covered with a metal grille, under conditions which did not allow
them to exert themselves physically (e.g. 15 m² for up to
ten prisoners; less than 10 m² for up to six prisoners).
...
93. As already indicated (cf.
paragraph 73), material conditions of detention were generally
poor throughout Daugavpils [p]rison.
...
133. The Latvian authorities have failed to
implement several of the urgent recommendations concerning
disciplinary matters made by the CPT after the 1999 visit. Prisoners
placed in disciplinary cells are still not provided with a mattress
and blankets at night and... are not offered outdoor exercise... Such
a flagrant disregard of the CPT's recommendations is totally
unacceptable.
...
134. Frequent recourse was had at Daugavpils
... [prison] to the sanction of solitary confinement. Further, it
appeared that in the majority of cases, the maximum penalty or close
to it was imposed... The CPT is not convinced that the sanctions
imposed were always proportional to the offence (for example,
extension of the placement in the punishment cell by 15 days for
folding down the wooden platform in the cell during the day).
...
135. Further, in view
of the information gathered during the 2002 visit, the CPT recommends
that steps be taken to ensure that all prisoners receive a copy of
the decision imposing a disciplinary punishment and are informed in
writing of the possibility to lodge an appeal with the Director of
the establishment.
...
140. One of the most effective means of
preventing ill-treatment by prison officers lies in the diligent
examination of complaints of ill-treatment and the imposition
of suitable penalties. Prisoners should have avenues of complaint
open to them both within and outside the prison system, including the
possibility of confidential access to an appropriate authority.
In all prisons visited, prisoners could, in
principle, submit a complaint to the establishment's Director. In
addition, complaints could be addressed to the Regional Prosecutor
and the National Human Rights Office.
However, the CPT is concerned by the manner in which
prisoners' complaints were processed in practice. Many prisoners
interviewed in the establishments visited indicated that they did not
have any trust in the current complaints system, since they were
obliged to hand their complaint - even those addressed to judicial
authorities - in an unsealed envelope to a prison officer. Not
surprisingly, only a few complaints were recorded in the
establishments visited. Means must be found of enabling complaints to
be submitted to the Regional Prosecutor and the National Human Rights
Office in a truly confidential manner.
...
141. The CPT has already emphasised the
importance of regular visits to all prison establishments by
an independent body with authority to receive - and, if necessary,
take action on - prisoners' complaints and to visit the premises...
The delegation noted that, in addition to the
General Prosecutor's Office, the National Human Rights Office carried
out visits to Latvian prisons. Visit reports and recommendations by
the latter body were submitted directly to the Ministry of Justice.
...”
The Latvian Government made the following comments and
additional comments in response (document CPT/Inf (2005)9):
RESPONSE OF THE GOVERNMENT OF LATVIA
“The maximum number of places of imprisoned
persons to be placed in prisons has been set by the Decree of the
Ministry of Justice dated 25 February 2003 and it complies [with] the
norms (not less than 2.5 m² for men and not less than 3 m²
for women and persons under the age of 18). The shortcoming related
to the overpopulation of imprisoned persons in Daugavpils as pointed
out by the experts of CPT Committee prison has been eliminated.
...
During the time period from year 1999 to 2002 no
complaints on physical assaults committed by the prison personnel,
have been received, there have been no disciplinary or criminal cases
initiated based on such complaints...”
ADDITIONAL RESPONSE OF THE GOVERNMENT OF LATVIA
“About mentioned in the letter overcrowding in
Daugavpils [p]rison we have to say that maximum capacity of that
prison is 543 places, on the 1st January 2004 there were 449
prisoners therefore prison density is 82.6%.
At the moment none of prisons is overcrowded.
... The Prison Administration until this year did not
make statistics on registration of claims about possible
ill-treatment in prisons. But according to paragraphs 125 and 126 of
Criminal Law there were initiated criminal cases: 7 in 2001, 5 in
2002, 5 in 2003. Starting from this year the Prison Administration
will make statistics of registration of claims about possible
ill-treatment in prisons.
Because of long period that has passed since the
incident of claim about ill-treatment that was mentioned in the
letter, it is difficult for Prison Administration to give any
elucidation on that matter...”
Following
its ad hoc
visit to Latvia from 5 to 12 May 2004, the CPT published its report
on 13 March 2008. In its relevant part the report reads as follows:
“8. At the end of the visit, on 12 May 2004, the
CPT's delegation held final talks with the Latvian authorities, in
order to acquaint them with the main facts found during the visit. On
this occasion, the delegation made the following immediate
observations, in pursuance of Article 8, paragraph 5, of the
Convention:
...
- to take steps at Daugavpils [p]rison ... to ensure
that all prisoners placed in disciplinary cells are given a mattress
and blankets at night, and are offered at least one hour of outdoor
exercise per day.
...
37. The CPT's delegation carried out full follow-up
visits to Daugavpils [p]rison and Rīga Central [p]rison
(including the Prison Hospital) and a targeted follow-up visit to
Jelgava [p]rison (Unit for life-sentenced prisoners), in order to
review the measures taken by the Latvian authorities after the 2002
visit.
38. All establishments visited have already been
described in paragraph 66 of the report on the 2002 visit. The
general descriptions contained in that report still remain valid.
Daugavpils [p]rison had recently been formally
transformed into a remand institution, although it was still
accommodating sentenced prisoners as well. Its official capacity had
been reduced from 800 to 543 places (including 43 juveniles). At the
time of the 2004 visit, the establishment was accommodating 426
inmates, of whom 101 were sentenced and 314 on remand (including 29
juveniles)....
39. In its report on the 2002 visit, the CPT made a
number of remarks and specific recommendations concerning the problem
of overcrowding as well as legal standards for the provision of
living space to prisoners in the Latvian prison system. In
particular, the Committee recommended that the existing legal
standards (i.e. 2.5 m² per person for male adult prisoners and 3
m² per person for female and juvenile prisoners) be increased as
soon as possible, so as to guarantee at least 4 m² per prisoner
in multi-occupancy cells.
Regrettably, in their response to the 2002 report, the
Latvian authorities chose to evade rather than address the
above-mentioned recommendations, laconically stating that, on the
basis of the existing legal standards, none of the Latvian prisons
were overcrowded.
40. The CPT must stress once again that the solution to
the problem of overcrowding was to be found not so much in developing
the prison estate but rather in reconsidering current law and
practice in relation to remand detention as well as sentencing
policies.
During the 2004 visit, it became apparent that there was
still room for improvement, especially as regards the imposition of
non-custodial sanctions and the duration of remand detention.
41. In the light of the above remarks, the CPT
reiterates its recommendations that:
- the existing legal standards on living space for
prisoners be raised without any further delay, so as to provide for
at least 4 m² per prisoner in multiple-occupancy cells, and that
official capacities and occupancy levels of cells in Latvian prisons
be revised accordingly;
- that the Latvian authorities continue to pursue
their efforts to bring about a permanent end to overcrowding; in this
context, Committee of Ministers Recommendation No. R (99) 22 on
prison overcrowding and prison population inflation should be taken
into account.
...
60. ... [T]he material conditions at Daugavpils [p]rison
... remained very poor (state of repair, ventilation, etc.). [In that
prison] metal shutters had still not been removed from all windows,
and inmates were still not provided with basic personal hygiene
products (including toilet paper). Further, in a number of cells ...
toilets were not (adequately) partitioned. ...
61. Regrettably, no improvements had been made at
Daugavpils [p]rison ... as regards regime activities offered
to sentenced and remand prisoners. As for sentenced prisoners
at Daugavpils, only a few worked in the kitchen or as maintenance
workers, and only 16 (out of 101 inmates) were provided with
vocational training (bricklaying and masonry). For all other
sentenced inmates, out-of-cell activities other than outdoor exercise
are limited to access to a gym, twice or three times per month, for
one hour. In neither of the establishments were remand prisoners
offered any out-of-cell activities apart from daily outdoor
exercise...
...
71. The CPT welcomes the improvements made to the
conditions of detention in the punishment cells at Daugavpils
[p]rison ... However, it is seriously concerned by the total failure
of the Latvian authorities to implement a number of urgent
recommendations made by the CPT after the 1999 visit and repeated
after the 2002 visit. Adult sentenced prisoners placed in
disciplinary cells were still not provided with a mattress and
blankets at night and (with the exception of TB patients) were not
offered outdoor exercise.
The delegation addressed these points in an immediate
observation, pursuant to Article 8, paragraph 5, of the Convention,
at the end of the visit (see paragraph 8).
By letter of 21 October 2004, the Latvian authorities
provided the following information:
“The Prison Department has prepared amendments to
the Latvian Penal Execution Code which lay down that in sleep hours
bed accessories are distributed to convicts in isolation wards and
submitted them for revision under the second reading of the said
amendments in the Parliament. It is not possible to ensure walks for
adult prisoners in isolation wards since the walking grounds are
situated separately from the imprisonment premises. It is necessary
to build more walking grounds but it depends on adequate funds.”
In the CPT's view, the Latvian authorities' reasons for
not yet having implemented these long-standing recommendations are
indefensible. The Committee calls upon the Latvian authorities to
take immediate steps to ensure that all prisoners placed in
disciplinary cells are given a mattress and blankets at night, and
are offered one hour of outdoor exercise per day. In the present
context, prisoners held in disciplinary cells should be escorted
daily to existing outdoor exercise areas.
...
In the light of the delegation's findings, steps
should also be taken to ensure that all prisoners placed in
punishment cells are allowed access to a wider range of reading
matter (i.e. not only religious literature) at Daugavpils [p]rison.
...”
B. Relevant domestic law
Article
92 of the Constitution (Satversme) provides, inter alia,
that “any person whose rights are violated without
justification has a right to commensurate compensation”. For
the relevant part of the judgment of the Constitutional Court
(Satversmes tiesa) of 5 December 2001 in case no. 2001-07-0103
see Kornakovs v. Latvia, no. 61005/00, § 54, 15 June
2006.
The relevant parts of the Law on the Prosecutor's
Office (Prokuratūras likums) as applicable at the
material time read as follows:
Section 6 – Independence of prosecutors
“(1) In their activities prosecutors shall be
independent of the influence of any other institution or official
exercising State authority or administrative power, and shall be
bound only by the law.
(2) The Parliament, the Cabinet of Ministers, State and
local government institutions, State and local government civil
servants, all types of enterprises and organisations, as well as all
individuals, are prohibited from interfering in the work of the
Prosecutor's Office during the investigation of a case or during the
performance of other functions of the Prosecutor's Office.
(3) Prosecutors' actions may be appealed against in the
cases and in accordance with the procedures specified by this law and
the relevant procedural laws. Complaints regarding matters within the
sole competence of the Prosecutor's Office shall be submitted to the
chief prosecutor of a Prosecutor's Office one level above or, with
regard to the actions of a prosecutor of the Prosecutor General's
Office, to the Prosecutor General. The decisions taken by the
aforementioned officials shall be final.
(4) A higher-ranking prosecutor may take over any case
file but may not compel a prosecutor to carry out actions contrary
his or her convictions.
...”
Section 9 – Mandatory nature of prosecutors'
orders
“(1) The lawful orders of a prosecutor shall be
binding on all persons in the territory of the Republic of Latvia.
(2) Persons shall be held liable as specified by law for
any failure to comply with the lawful requests of a prosecutor.”
Section 15 – Supervision of the execution of a
sentence of deprivation of liberty
“In accordance with the procedures prescribed by
law, the prosecutor shall supervise the execution of sentences of
deprivation of liberty applied by the courts and the places where
persons arrested, detained or under guard are kept, and shall take
part in court sittings relating to changes in the specified term of a
sentence or of its conditions.”
Section 16 – Protection of the rights and
lawful interests of persons and the State
“(1) On receipt of information concerning a breach
of the law, the prosecutor shall carry out an examination in
accordance with the procedures prescribed by law, if:
...
2. the rights and lawful interests of [inter alia]
...detainees ... have been violated.
(2) The prosecutor has a duty to take the measures
required for the protection of the rights and lawful interests of
persons and the State, if:
1. the Prosecutor General or a chief prosecutor
recognises the need for an examination; ...”
Section 17 – Powers of prosecutors in examining
applications
“(1) In examining applications in accordance with
the law, prosecutors have the right:
1. to request and to receive regulatory enactments,
documents and other information from the administrative authorities
..., as well as to enter, without hindrance, the premises of such
authorities;
2. to assign the heads and other officials of ...
institutions and organisations to carry out examinations, audits and
expert examinations and to submit opinions, as well as to provide the
assistance of specialists in the examinations carried out by the
prosecutor;
3. to invite persons [to come] and to receive from
him/her an explanation on the breach of the law...
(2)
When taking a decision on a breach of the law, prosecutors ...have a
duty:
1. to warn that the breach of the law is not allowed;
2. to submit an objection or a request concerning the
necessity of putting an end to the breach;
3. to bring an action before the court;
4. to initiate a criminal investigation; or
5. to initiate [proceedings concerning] administrative
or disciplinary liability.”
Section 20 – Application by the prosecutor
“...
(3) If the requirements of a prosecutor's request are
not complied with or no reply is provided, the prosecutor is entitled
to submit to a court or any other competent institution an
application to have the person concerned held liable as prescribed by
law.”
The former Code of Criminal Procedure (Kriminālprocesa
kodekss), in force at the material time and until 1 October 2005,
gave prosecutors the right to open criminal investigations. Under
section 112, paragraph 3 a refusal by a prosecutor to institute a
criminal investigation could be appealed against to a higher-ranking
prosecutor.
Section 130 of the Criminal Law (Krimināllikums)
reads as follows:
Section 130 – Intentional minor bodily injury
“(1) A person who intentionally inflicts bodily
injury [on another person] without causing damage to health or a
general ongoing loss of ability to work (minor bodily injury), or who
intentionally [subjects another person] to beating, without causing
the above-mentioned consequences
shall be liable to short-term imprisonment, community
service or a fine not exceeding ten times the minimum monthly wage.
(2) A person who intentionally inflicts minor bodily
injury [on another person] causing temporary damage to health or an
insignificant general ongoing loss of ability to work
shall be liable to deprivation of liberty for a term not
exceeding one year, short-term imprisonment, community service or a
fine not exceeding twenty times the minimum monthly wage.
(3) A person who [subjects another person to] systematic
beating amounting to torture, or any other kind of torture, provided
these acts do not produce the consequences provided for in sections
125 and 126 of this Law
shall be liable to deprivation of liberty for a term not
exceeding three years, short-term imprisonment, community service or
a fine not exceeding sixty times the minimum monthly wage.”
According to section 111, paragraph 2 of the Code of
Criminal Procedure, the aforementioned offence fell into the category
of private prosecution cases, which had to be brought by the
individual concerned directly before the competent court. The
statutory limitation period for this offence was six months (section
56, paragraph 1 of the Criminal Law).
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
On 4 February 2009 the Government made the following
unilateral declaration:
“The Government of the Republic of Latvia
(hereinafter – the Government) represented by [their] Agent
Inga Reine admit that Igor Bazjak's (hereinafter – the
applicant) conditions of imprisonment in the Daugavpils prison, lack
of effective investigation, procedure for imposing disciplinary
punishments, as well as lack of effective remedies did not meet the
standards enshrined in Article 3 and Article 13 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (hereinafter
– the Convention). Being aware of that, the Government
undertake to adopt all necessary measures in order to avoid similar
infringements in future.
Taking into account that the parties have failed to
reach a friendly settlement in the present case, the Government
declare that they offer to pay ex gratia [5,000] euros to the
applicant ([3,515 Latvian lati]), this amount being the global sum
and covering any pecuniary and non-pecuniary damage together with any
costs and expenses incurred, free of any taxes that may be
applicable, with a view to terminat[ing] the proceedings pending
before the European Court of Human Rights (hereinafter – the
Court) in the case [of[ Bazjaks v. Latvia (application no.
71572/01).
The Government undertake to pay the above compensation
within three months from the date of notification decision (judgment)
taken by the Court pursuant to Article 37 [§ 1] of the
Convention. In the event of failure to pay this sum within the said
[three-month] period, the Government undertake to pay simple interest
on it, as established in the decision (judgment) by the Court. The
above sum shall be transferred to the bank account indicated by the
applicant.
This payment will constitute the final resolution of the
case.”
The
Court observes, as it has previously stated (see Tahsin Acar v.
Turkey (preliminary issue) [GC], no. 26307/95, §§
74-77, ECHR 2003 VI), that a distinction must be drawn between,
on the one hand, declarations made in the context of strictly
confidential friendly-settlement proceedings and, on the other,
unilateral declarations – such as the present declaration –
made by a respondent Government in public and adversarial proceedings
before the Court. In accordance with Article 38 § 2 of the
Convention and Rule 62 § 2 of the Rules of Court, the Court will
proceed on the basis of the Government's unilateral declaration
submitted outside the framework of friendly-settlement negotiations,
and will disregard the parties' statements made in the context of
exploring the possibilities for a friendly settlement of the case and
the reasons why the parties were unable to agree on the terms of a
friendly settlement (see Melnic v. Moldova, no. 6923/03,
§ 22, 14 November 2006).
The
Court considers that, under certain circumstances, it may be
appropriate to strike out an application under Article 37 § 1
(c) of the Convention on the basis of a unilateral declaration by the
respondent Government. It will, however, depend on the particular
circumstances whether the unilateral declaration offers a sufficient
basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (Article 37 § 1 in
fine; see also Tahsin
Acar, cited above, § 75;
Seleckis v. Latvia,
no. 41486/04, § 21, 2 March 2010; and the case-law cited
therein).
Relevant
factors in this regard include the nature of the complaints made,
whether the issues raised are comparable to issues already determined
by the Court in previous cases, the nature and scope of any measures
taken by the respondent Government in the context of the execution of
judgments delivered by the Court in any such previous cases, and the
impact of these measures on the case at issue. It may also be
material whether the facts are in dispute between the parties, and,
if so, to what extent, and what prima
facie evidentiary value is to be
attributed to the parties' submissions on the facts. In that
connection it will be of significance whether the Court itself has
already taken evidence in the case for the purposes of establishing
disputed facts. Other relevant factors may include the question of
whether in their unilateral declaration the respondent Government
have made any admissions in relation to the alleged violations of the
Convention and, if so, the scope of such admissions and the manner in
which they intend to provide redress to the applicant.
The
foregoing list is not intended to be exhaustive. Depending on the
particular circumstances of each case, it is conceivable that further
considerations may come into play in the assessment of a unilateral
declaration for the purposes of Article 37 § 1 (c) of the
Convention (see Melnic, cited above, §§ 24
and 25).
As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court observes that the Government conceded that
there had been violations of Articles 3 and 13 of the Convention on
the following four accounts: the conditions of imprisonment in
Daugavpils prison, the lack of an effective investigation, the
procedure for imposing disciplinary punishments and the lack of
effective domestic remedies. They offered to pay the applicant ex
gratia 5,000 euros covering
pecuniary and non-pecuniary damage, costs and expenses.
The
Court cannot fully ascertain the scope of the complaints covered by
the unilateral declaration. On the one hand, it is sufficiently clear
that the Government admitted that the conditions of detention in
Daugavpils prison were in breach of Article 3 of the Convention. On
the other hand, it is unclear in relation to which events complained
of by the applicant the Government admitted to not having complied
with the obligation to ensure an effective investigation under
Article 3 and effective remedies under Article 13 of the
Convention. Nor is it clear whether the Government conceded that all
disciplinary penalties were in breach of Article 3 of the Convention.
The
Court observes furthermore that the Government's unilateral
declaration contained an indication that they were offering to pay
the compensation ex gratia,
that is without recognising any liability or, indeed, any legal
obligation, a wording which in itself contradicts the Government's
admission of several breaches of the Convention. Even though in some
cases the Court has, on an exceptional basis, accepted unilateral
declarations submitted by the respondent Government containing such
contradictory wording (see, for example, Urtāns
v. Latvia (dec.), no. 25623/04, §
16, 7 April 2009, and Daģis
v. Latvia (dec.), no. 7843/02, §
41, 30 June 2009), it cannot do so in the present case for the
following reasons. Firstly, the amount of compensation proposed by
the respondent Government in the present case is substantially less
than what the Court would award in similar cases. Secondly, as
noted in the above paragraph, the Court cannot fully ascertain the
scope of the unilateral declaration and, therefore, cannot evaluate
whether or not the Government's admissions contained in that
declaration are sufficient to find that respect for human rights does
not require it to examine the case further. The Court has not ruled
on the conditions of detention for convicted persons in Latvian
prisons and, accordingly, such issues have not been previously
determined. For that reason, the Court cannot ascertain the nature
and scope of any measures taken by the Latvian Government in the
context of execution of judgments concerning the conditions of
detention. In so far as the Latvian Government's undertaking “to
adopt all necessary measures in order to avoid similar infringements
in future” is concerned (see paragraph 45 above), the Court
therefore considers such an assurance to be of too general a
character without specifying any concrete measures to be taken in
order to avoid similar infringements in future.
On
the facts and for the reasons set out above the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case.
This
being so, the Court rejects the Government's request to strike the
application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
The
applicant raised numerous complaints under Article 3 of the
Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Court will examine separately each of the applicant's complaints.
A. Admissibility
1. Alleged violations concerning ill-treatment during
and after the applicant's arrest
The applicant claimed that he had been beaten by the
police on his arrest on 2 June 1998 and in the course of
police questioning, and that he had been ill-treated by a police
officer on 26 November 1998. He further complained about
the poor and unhygienic conditions in the cell at the Ventspils
Police Department where he was held in custody.
The Court reiterates that, according to Article 35 §
1 of the Convention, it may only deal with an issue after all
domestic remedies have been exhausted. The purpose of Article 35 is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Court (see Remli v. France,
23 April 1996, § 33, Reports of Judgments and Decisions
1996 II; Selmouni v. France [GC], no. 25803/94, §
74, ECHR 1999 V; and, more recently, Scoppola v. Italy
(no. 2) [GC], no. 10249/03, § 68, ECHR 2009 ...).
Thus, the complaint submitted to the Court must first have been made
to the appropriate national authorities, at least in substance, in
accordance with the formal requirements of domestic law and within
the prescribed time-limits. Nevertheless, the obligation to exhaust
domestic remedies only requires that an applicant make normal use of
remedies which are effective, sufficient and accessible in respect of
his Convention grievances (see Balogh v. Hungary, no.
47940/99, § 30, 20 July 2004). The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness (see Dalia v. France, 19 February 1998, §
38, Reports 1998 I).
Where no effective remedy is available to the
applicant, the time-limit for bringing a case to the Court expires
six months after the date of the acts or measures complained of, or
after the date of knowledge of that act or its effect or prejudice on
the applicant (see Younger v. the United Kingdom (dec.), no.
57420/00, ECHR 2003 I). It may even be appropriate for the
purposes of Article 35 § 1 of the Convention to take the start
of the six-month time-limit from the date when an applicant first
became or ought to have become aware of the circumstances which
rendered the remedy ineffective (see Keenan v. the United Kingdom,
no. 27229/95, Commission decision of 22 May 1998, unreported, and
Paul and Aubrey Edwards v. the United Kingdom (dec.), no.
46477/99, 4 June 2001).
In the case of a continuing situation, the time-limit
usually expires six months after the end of the situation concerned
(see Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89,
Commission decision of 12 February 1992, Decisions and Reports
(DR) 72, p. 148, and, more recently, Varnava and Others v. Turkey
[GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, 16072/90 and 16073/90, §§ 159 et seq.,
ECHR 2009 ...). Similarly, in respect of a complaint about the
absence of a remedy for a continuing situation the time-limit under
Article 35 § 1 of the Convention also expires six months after
the end of that situation – for example, when an applicant is
released from custody in the case of a complaint about a period of
detention (see Ječius v. Lithuania, no. 34578/97, §
44, ECHR 2000 IX).
In
the instant case the Court notes that the applicant submitted that he
had complained about the alleged ill-treatment to various domestic
authorities. He contended that he had brought the issue of the
conditions of detention in the Ventspils Police Department to the
attention of the domestic authorities. Without examining the
applicant's use of domestic remedies or the effectiveness of any such
remedies, the Court observes that the first alleged violation took
place on 2 June 1998 (see paragraph 6 above). The second alleged
violation took place on 26 November 1998 (see paragraph 11 above).
Finally, the third alleged violation was a continuing situation which
ended on 6 June 1999 with the applicant's transfer to Jelgava prison
(see paragraph 16 above). The Court observes that the application was
lodged with the Court in 2001, that is, more than six months later.
It follows that these complaints were introduced out
of time and must be declared inadmissible in accordance with Article
35 §§ 1 and 4 of the Convention.
2. Alleged violations concerning ill-treatment in
Jelgava prison
The applicant complained of two distinct violations of
Article 3 of the Convention by prison staff while he was in Jelgava
prison. First of all, he claimed to have been subjected to various
unlawful disciplinary penalties; he particularly emphasised the
illegal and unjust character of the last of these, imposed on 18 July
2000. Secondly, he complained of a brutal assault by prison guards
which, according to him, took place on an unspecified date at the end
of 2000 while he was again placed in a disciplinary cell. He claimed
to have suffered serious injuries as a result and alleged that no
adequate medical treatment had been provided to him. Finally, he
alleged that there had been no effective investigation into his
allegations of ill-treatment.
(a) The parties' submissions
Concerning
the first of these allegations, the Government raised a preliminary
objection of failure to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. They recognised that on 7
November 2000 the applicant had indeed complained to the Specialised
Public Prosecutor's Office about the unlawfulness of the most recent
punishment imposed on him on 18 July 2000 and that on 24 November
2000 the competent prosecutor had dismissed his complaint. However,
he had failed to appeal against this decision to a higher-ranking
prosecutor under section 6, paragraph 3 of the Law on the
Prosecutor's Office.
In
any case, the Government claimed that the impugned disciplinary
penalty was an appropriate and proportionate response to the
applicant's rude, aggressive and threatening behaviour; moreover, he
himself had eventually recognised that he had been out of control.
Consequently, there was nothing to suggest a possible violation of
Article 3 of the Convention.
As
to the second allegation, the Government expressed strong doubts as
to the truthfulness of the applicant's statements. According to them,
those statements were unproven and should be dismissed as
unsubstantiated. First of all, the Government noted that the
applicant was unable to recollect the date of the alleged beating,
despite being very precise with regard to all the other facts
mentioned in his application. Secondly, no such beating could have
occurred at the time and in the circumstances described by the
applicant, since it was clear from his personal file that his last
disciplinary punishment in Jelgava prison had been imposed on 18 July
2000 and that he had left that prison on 22 November 2000. In
other words, he could not have been “beaten in a disciplinary
cell at the end of 2000”. The Government submitted documents to
the effect that within a two-month interval, in October and November
2000, the applicant had filed thirteen complaints with the
Prosecutor's Office; however, allegedly none of them ever mentioned
such episode of ill-treatment as described by the applicant. The
Government wondered “why the applicant could submit so many
complaints in a very short period of time about issues of a minor
importance but did not complain... about the above-mentioned abuses
to his health”. Likewise, the last complaint concerning alleged
shortcomings in the applicant's medical treatment in Jelgava had been
submitted to the Prison Administration in July 1999, and he had never
raised similar issues again. The Government concluded that this
particular complaint should be rejected for lack of evidence, since
it did not correspond to the truth.
Finally,
the Government submitted two reports drawn up, respectively, by the
governors of Jelgava and Daugavpils prisons in 2000 and 2001, which
contained a very negative assessment of the applicant. The latter was
described as a devious and deceitful person, immune to all educative
efforts, with a strong tendency towards breaking prison rules,
exercising a negative influence over other detainees and filing
numerous unsubstantiated complaints.
The
applicant submitted in his reply to the Government that the domestic
remedies were not effective. He considered them inaccessible to
prisoners and inadequate. He alleged that not all complaints written
by prisoners were entered in the records of Jelgava prison and thus
not all of them were forwarded to the competent domestic authorities.
In any case, in the applicant's opinion the case file
contained enough evidence in support of his allegations. He clarified
his allegations concerning two separate violations of Article 3 of
the Convention. He maintained his first allegation that the
disciplinary penalties imposed on him, and in particular the one
imposed on 18 July 2000, had been unjust and he added that
excessive force had been used against him by prison guards in Jelgava
prison around that date. With regard to the second allegation, he
could not recall the specific date of the assault by prison guards at
the end of 2000; instead, he alleged that it had taken place in the
Central Prison Hospital in Rīga and not in Jelgava prison as he
had submitted previously.
(b) The Court's assessment
The
Court notes at the outset that in his reply to the Government's
observations the applicant introduced a new complaint about the use
of force in Jelgava prison around 18 July 2000 in essence under
Article 3 of the Convention. As it has decided
in previous cases, the Court need not rule on complaints raised after
communication of an application to the Government (see RuZa
v. Latvia (dec.), no. 33798/05, §§ 30-31, 11 May 2010
and the case-law cited therein).
With
regard to the first part of the applicant's complaint about
disciplinary penalties, the Court does not consider it necessary to
reach any conclusion as to whether or not the applicant exhausted
domestic remedies and whether or not such domestic remedies were
effective, since this part of the applicant's complaint is
inadmissible in any event for being manifestly ill-founded.
The Court notes that there is nothing in the case-file
to suggest that the disciplinary penalties imposed on the applicant
in Jelgava prison have been arbitrary. As regards the last of them –
solitary confinement of fifteen days – the Court notes that
imposition of such a penalty in itself is not a breach of Article 3
of the Convention. The applicant has presented no medical record or
other evidence showing that he suffered any pain or distress as a
result of those disciplinary penalties beyond the inevitable element
of suffering or humiliation connected with legitimate forms of
treatment or punishment, such as disciplinary sanctions against
prisoners to secure good order in prisons (see Valašinas v.
Lithuania, no. 44558/98, § 121, ECHR 2001 VIII).
The Court considers, therefore, that the disciplinary penalties at
issue did not attain the level of severity amounting to treatment
contrary to Article 3 of the Convention.
It follows that this part of the complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
Turning to the second part of the applicant's
complaint concerning the assault by prison guards, the Court
reiterates that in assessing evidence in a claim of a violation of
Article 3 of the Convention, it adopts the standard of proof “beyond
reasonable doubt” (see Ireland v. the United Kingdom, 18
January 1978, § 161, Series A no. 25, and Avşar v.
Turkey, no. 25657/94, § 282, ECHR 2001 VII
(extracts)). Such proof may, however, follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Labita v. Italy [GC], no.
26772/95, § 121, ECHR 2000 IV).
The Court is sensitive to the subsidiary nature of its
task and recognises that it must be cautious in taking on the role of
a first-instance tribunal of fact where this is not rendered
unavoidable by the circumstances of a particular case (see McKerr
v. the United Kingdom, no. 28883/95, ECHR 2001 III).
Nonetheless, where allegations are made under Article 3 of the
Convention the Court must apply a particularly thorough scrutiny
(see, mutatis mutandis, Ribitsch v. Austria, 4 December
1995, § 32, Series A no. 336, and Avşar, cited
above, § 283).
The Court notes that there are two main elements in
the instant case which cast doubt on the applicant's submission that
he suffered treatment prohibited by Article 3 at the end of 2000.
Firstly, the Court notes that the applicant has not been consistent
in his allegations of ill-treatment. When introducing his complaint
to the Court, he first alleged that he had been severely beaten by
prison guards in Jelgava prison (see paragraph 23 above). Replying to
the Government's observations, he alleged that he had in fact been
beaten in the Central Prison Hospital in Rīga
(see paragraph 69 above). In neither
set of submissions did he specify the date of the alleged events.
Secondly, the medical synopsis submitted by the applicant did not
mention traces of ill-treatment on the applicant's body, contrary to
his submissions (see paragraph 23 above). The Court is aware of the
lack of detail in that medical record. Nevertheless, it notes that
there is no material in the case file which could call into question
the content of that record or add probative weight to the applicant's
allegations (see Sevgin and İnce v. Turkey, no. 46262/99,
§ 57, 20 September 2005).
In
conclusion, the evidence before it does not enable the Court to find
beyond all reasonable doubt that the applicant was subjected to
ill-treatment at the end of 2000 in the circumstances described by
him.
It follows that this part of the complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
Finally, with regard to effective investigation of the
applicant's complaints about ill-treatment, the Court reiterates that
where an individual raises an arguable claim that he has been
seriously ill-treated by the police or other such agents of the State
unlawfully and in breach of Article 3, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation (see Assenov and Others v. Bulgaria, 28 October
1998, § 102, Reports 1998 VIII, and Labita v.
Italy [GC], no. 26772/95, § 131, ECHR 2000 IV). In the
present case the Court has concluded that the disciplinary penalties
imposed on the applicant in Jelgava prison did not reach the level of
severity required for Article 3 to apply (see paragraphs 72-73 above)
and that the applicant's allegations of ill-treatment at the end of
2000 were unsubstantiated (see paragraphs 76-78 above). In such
circumstances it cannot be said that the Latvian authorities were
under a positive obligation to conduct an effective investigation
into the applicant's allegations (see, by contrast, Arat v.
Turkey, no. 10309/03, § 42, 10 November 2009, where
such an obligation was incumbent on the Turkish authorities due to a
reasonable suspicion that the applicant's injuries documented by
evidence in that case might have been caused by an excessive use of
force). Accordingly, also this part of the complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
3. Alleged violations concerning the conditions of
detention in Daugavpils prison
The applicant complained, first of all, that the
conditions in which he had been held in Daugavpils prison amounted to
inhuman and degrading treatment. He then identified, secondly and
thirdly, two successive periods when, according to him, Article 3
had been violated on account of particularly bad conditions of
detention:
- in
the special segregation unit where he was held between 8 November
and 21 December 2001 and where he was allegedly subjected to
abuse by prison staff (see paragraph 28 above), and
- in
disciplinary cells nos. 22 and 14, where he was held between
21 December 2001 and 25 January 2002. In support of his
allegations he submitted that, owing to the conditions of his
detention, his health had been severely damaged. He also considered
that the disciplinary penalties imposed on him were unlawful.
Finally, he submitted that the orders to strip naked had humiliated
him physically as well as mentally.
(a) The parties' submissions
The
Government submitted that the applicant had failed to exhaust
domestic remedies. Firstly, he could have submitted the relevant
complaints to the Prosecutor's Office, which was expressly designated
by the law to supervise prisons and protect the rights of detained
persons. Taking into account the fact that the Law on the
Prosecutor's Office granted prosecutors extensive powers to deal with
complaints brought, inter alia, by detainees, and that it
guaranteed prosecutors' independence and made their orders binding on
State authorities (see paragraph 41 above), such complaints
constituted an effective remedy to be exhausted within the meaning of
Article 35 § 1 of the Convention. Therefore, the
Government considered the domestic remedies under sections 6, 9, 15,
16, 17 and 20 of that Law to be effective and accessible and to offer
reasonable prospects of success. The same applied to the applicant's
assertion that he had been obliged to strip naked every day and that
the medical treatment provided to him had been unsatisfactory.
Secondly, nothing prevented the applicant from initiating a private
prosecution for minor bodily injuries under section 130 of the
Criminal Law, by filing a complaint with the competent court (see
paragraphs 43-44 above).
According to the Government, during the applicant's
stay in Daugavpils the last complaint lodged by him had been on 26
March 2001; it had been filed with the Inspector General of the
Ministry of Justice and related only to restrictions on receiving
food parcels from relatives. At the same time, in their written
observations, the Government made the following statement:
“56. ...[I]n 2001 [a] prosecutor examined the
medical record of the applicant in Daugavpils prison and concluded
that there was no evidence [to indicate] that the applicant had
recourse to the Medical Department of [that] prison with the signs of
ill-treatment. Furthermore, the prosecutor noted that the facts of
discrimination against the applicant were not established and he [was
being kept in] the same conditions of detention as other convicts.
The prosecutor concluded that there was no information evidencing the
intentional abuse of the official position by the personnel of
Daugavpils prison and there were no [complaints] received by the
Prosecutor's Office from the applicant.”
In support of that statement the Government submitted
an information note drafted by a prosecutor of the Specialised Public
Prosecutor's Office on an unspecified date in 2001. In the upper
right-hand corner of the document the words “mid-June 2001”
appear. The note reads as follows:
“The examination of [the applicant's] medical
record in Daugavpils prison did not reveal any indication that he had
reported to the Medical Department of the prison with signs of
ill-treatment.
Currently, more than 800 convicted persons and detainees
are held in the prison; however, the normal [capacity] is 500. While
this leads to non-compliance with the rules on minimum standards for
prisoners, the situation is not attributable to the prison
administration.
No signs of discrimination against [the applicant] have
been established; he is being held under the same conditions as any
other prisoner.
No signs of abuse of power on the part of the prison
administration in Daugavpils have been found.
The Daugavpils Division of the Specialised Public
Prosecutor's Office did not receive any requests from [the
applicant].”
The
applicant submitted that the domestic remedies were not effective. He
considered them inaccessible to prisoners and inadequate. He argued
that recourse to a prosecutor could not be considered as an effective
remedy. In his view, the Government's submissions were evidence of
the ineffectiveness of examination by a prosecutor.
(b) The Court's assessment
The
Court reiterates that there is no obligation
under Article 35 § 1 of the Convention to have recourse to
remedies which are inadequate or ineffective. In addition, according
to the “generally recognised rules of international law”,
to which Article 35 of the Convention makes reference, there may be
special circumstances which absolve the applicant from the obligation
to exhaust domestic remedies at his disposal (see, among many other
authorities, Aksoy v. Turkey, 18 December 1996, §
52, Reports 1996-VI). It is incumbent on
the Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success. Once this
burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted or was for some reason inadequate and ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports
1996 IV, and Menteş and Others v. Turkey, 28
November 1997, § 57, Reports 1997 VIII).
(i) Conditions of the applicant's detention in
Daugavpils prison
The
Court notes that the parties hold contradicting views with regard to
exhaustion of domestic remedies. However, even in such circumstances
the Government have to show that a particular domestic remedy, on
which they base their non-exhaustion argument, is an effective one,
available in theory and in practice at the relevant time.
The
Court notes that the decisive question in assessing the effectiveness
of a remedy concerning a complaint of conditions of detention is
whether the applicant can raise this complaint before domestic
authorities in order to obtain direct and timely redress, and not
merely an indirect protection of the rights guaranteed by Article 3
of the Convention. The remedy can be both preventive and compensatory
in instances where persons complain about the conditions of detention
(see Melnik v. Ukraine, no. 72286/01, § 68, 28 March
2006).
Concerning the applicant's alleged failure to complain
to the prosecution authorities, which the Government contended was an
effective remedy, the Court notes that the applicant's complaint
concerns conditions of detention in one of the State's penitentiary
institutions. Since its first visit in 1999 the CPT has been deeply
concerned about the general conditions in prisons in Latvia. They
have subsequently reiterated and specified various problems,
including the problem of high occupancy levels in cells and
overcrowding (see paragraph 37 above). Even more, as it appears from
the case materials and in so far as the applicant is concerned –
the Latvian prosecution authorities were aware of his situation in
Daugavpils prison and, in particular, the problem of overpopulation
and non-compliance with the minimum standards at the material time
(see paragraph 83 above). Yet, the Government did not provide any
material that would show that the prosecution authorities had
exercised their powers under the Law on the Prosecutor's Office,
which according to the Government were quite extensive, in so far as
the applicant was concerned despite their apparent knowledge of the
situation.
Irrespective
of the reason for which a prosecutor of the Specialised Public
Prosecutor's Office prepared the information note in 2001 (see
paragraph 83 above), be it in reply to a request by the applicant or
for any other reason, the Court notes that he expressly acknowledged
the fact that Daugavpils prison had held more prisoners that its
designed capacity allowed and that it had led to non-compliance with
the rules on minimum standards for prisoners but that all prisoners,
including the applicant, were kept in those conditions and thus the
applicant had not been discriminated. In such circumstances the Court
concludes that the proposed remedy was not effective.
Furthermore,
even assuming that, following the applicant's complaint, a prosecutor
would have been able to ensure his transfer to a different
penitentiary institution or otherwise put an end to the situation of
him being kept in detention under the conditions contrary to Article
3 of the Convention and would have provided further preventive
redress, the Government have not shown that the applicant had at his
disposal a possibility to seek compensatory redress (see paragraph 133
below).
As
concerns an application to initiate a private prosecution for minor
bodily injuries, the Court does not consider that it was capable of
providing any redress to the applicant in relation to the complaint
about the conditions of his detention in that prison.
In
view of the above, the Court finds that this part of the application
cannot be rejected for failure to exhaust domestic remedies.
The Court considers that this part of the applicant's complaint is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
(ii) Conditions of detention in the special
segregation unit
Even
if the experience shows that the material conditions in segregation
or disciplinary cells are generally below the overall standard of the
conditions of detention in prisons, the Court observes that the only
account of the conditions of detention in the special segregation
unit is that furnished by the applicant. Although his account appears
to be clear and concordant, it is not corroborated by any other
evidence. The relevant CPT report does not provide any further
details on the conditions in the special segregation unit as distinct
from the conditions of detention (analysed below in paragraphs 107 to
119). It does not appear from the applicant's submissions that he was
kept in the quarantine unit designed for newly arrived, sick or
vulnerable persons, described by the CPT in the report on its 2002
visit as having humid and cold cells offering no access to natural
light. Nor is the applicant's account corroborated by written
statements from any other persons, for example his cellmates.
Accordingly, the Court cannot follow the approach taken in cases
where there was more evidence attesting to the particular conditions
of detention (see, for example, Khudoyorov v. Russia, no.
6847/02, §§ 113 et seq., ECHR 2005 X (extracts), where
the applicant's account was corroborated by written statements from
his cellmates, and Fedotov v. Russia, no. 5140/02, §§
67 et seq., 25 October 2005, where the applicant's description
coincided with the findings of the CPT).
As
far as the applicant's allegations about abuse by prison staff in the
special segregation unit are concerned, the Court points out that the
prosecutor's conclusion that there were no signs of ill-treatment
appears to have been made in June 2001 (see paragraph 83 above), that
is, before the applicant's placement in the special segregation unit
on 8 November 2001, and, accordingly, is of no relevance in deciding
whether the applicant suffered any ill-treatment in that unit.
However, the Court observes that there is no evidence in the case
file that would corroborate the applicant's allegations of abuse or,
indeed, ill-treatment on the part of prison staff in that unit. The
medical synopsis submitted by the applicant did not mention traces of
abuse or ill-treatment on the applicant's body. Therefore, the
evidence before it does not enable the Court to conclude beyond all
reasonable doubt that the conditions of the applicant's detention or
his treatment in the special segregation unit were contrary to
Article 3 of the Convention.
It follows that this part of the applicant's complaint
is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
(iii) Conditions of detention in disciplinary cells
nos. 22 and 14
The
Court observes that, again, the only evidence before it is the
applicant's account of the conditions of detention in disciplinary
cells nos. 22 and 14. While his account appears to be clear and
concordant, it has not been corroborated by any other evidence. The
relevant CPT report does not provide any further details on the
conditions in the disciplinary cells as distinct from the conditions
of detention (analysed below in paragraphs 107 to 119), apart from
the lack of mattresses and blankets in the disciplinary cells. The
remainder of the applicant's submissions in this regard stand alone
with no other proof. There is no evidence that daily full body
searches were performed on the applicant (compare the CPT's findings
as regards life-sentenced prisoners quoted in Savičs
v. Latvia (dec.), no. 17892/03, 11 May 2010). Nor is there
any evidence of a lack of adequate medical care or of traces of
injuries on the applicant's body sustained while he was being kept in
those disciplinary cells. Furthermore, there is nothing in the
case-file to suggest that the disciplinary penalties imposed on the
applicant in Daugavpils prison have been arbitrary. Therefore, the
evidence before it does not enable the Court to conclude beyond all
reasonable doubt that the conditions of the applicant's detention or
his treatment in disciplinary cells nos. 22 and 14 were contrary to
Article 3 of the Convention.
It follows that this part of the applicant's complaint
is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
4. Alleged violation concerning the medical assistance
in Grīva prison
99. The
applicant expressed his dissatisfaction with the medical assistance
provided to him in Grīva prison but did not substantiate his
allegations or provide relevant or, indeed, any documents in support
of his claims.
100. The
Court observes that before the applicant's transfer to Grīva
prison he appears to have been treated for tuberculosis in the
Central Prison Hospital in Rīga. There is nothing in the case
file to suggest that the follow-up to that treatment in Grīva
prison was not provided in an adequate manner.
101. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Merits
1. The parties' submissions
The Government agreed that the conditions of
detention in Daugavpils prison were not ideal, but submitted that
they did not reach the level of severity required for the threshold
established for Article 3 to apply. In support of this argument, the
Government provided a copy of a one-and-a-half page report drawn up
by the Prison Administration following a general inspection of
Daugavpils prison in May 2000. The relevant parts of this report read
as follows:
“The administration [of Daugavpils prison] has
made efforts to improve the everyday conditions of detainees. The
utmost attention has been paid to the improvement of the prison site,
the cells and the auxiliary premises. The sanitary condition of the
establishment's fittings is generally satisfactory; however,
detainees keep too many personal items in their cells.
The detainees have access to a chapel and a library in
their free time. Owing to the support of the Soros foundation in
Latvia, convicted prisoners may follow a Latvian language course.
The prison personnel are receiving professional
training, the schedule and content of which are confirmed by an order
of the prison governor. The operational duties of each employee have
been drawn up and approved. Attention is paid to the recreational
opportunities for employees in the form of an equipped gym and a
common room.
...
The meeting area of the prison, the cell furniture and
the maintenance facilities are morally and physically obsolete, and
it is necessary to replace them...”
The
Government pointed out, referring to the report, that Daugavpils
prison had “special premises for the prison library, oratory,
sport field and rest room” and that courses in Latvian were
available to the prisoners.
They
further submitted that there was no evidence of intimidating body
searches having taken place in the corridor and that the applicant
had not been ordered to strip naked. In support of their submission,
they relied on the prosecutor's note quoted above (see paragraph 83
above) and asserted that the applicant had not been abused by prison
staff. Finally, they stated that “there [were] no solitary
confinements or any other special cells for those who have announced
hunger strike in Daugavpils prison.”
The
applicant disagreed. First of all, he alleged that the general
inspection of Daugavpils prison carried out by the Prison
Administration in 2000 had not been impartial. Further, he had
contracted tuberculosis owing to the conditions of detention. He had
also felt helpless and humiliated because of the conditions of his
detention and the conditions in the disciplinary cells. Finally, he
maintained that he had been put in a disciplinary cell for having
announced a hunger strike.
2. The Court's assessment
(a) General
principles enshrined in the case-law
As
the Court has held on many occasions, Article 3
of the Convention enshrines one of the most fundamental values of
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,
cited above, § 119). However, to fall
under Article 3 of the Convention, ill-treatment must attain a
minimum level of severity. The assessment of this minimum
level is, in the nature of things, 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 Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III).
Furthermore,
the State must ensure that a person is detained in conditions which
are compatible with respect for his 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, § 94, and
Valašinas v. Lithuania, cited above, § 102).
When assessing conditions of detention, account has to be taken of
the cumulative effects of those conditions as well as the applicant's
specific allegations (see Dougoz v.
Greece, no. 40907/98, § 46,
ECHR 2001 II; Kalashnikov v.
Russia, no. 47095/99, § 102,
ECHR 2002-VI; and Ostrovar v. Moldova, no. 35207/03,
§ 80, 13 September 2005). The duration of
detention is also a relevant factor.
(b) Application in the present case
The applicant complained about
the conditions in which he was held in Daugavpils prison between 11
January 2001 and 26 January 2002, that is, for one year and fifteen
days. The findings of the CPT, in particular in the report on its
2002 visit (see paragraph 37 above), provide at least to some degree
a reliable basis for the assessment of the conditions in which the
applicant was imprisoned (see, for another example of the Court's
taking into account the reports of the CPT, Kehayov
v. Bulgaria, no. 41035/98,
§ 66, 18 January 2005). While the Court does not
discount the fact that the applicant's stay in Daugavpils prison
ended in January 2002, that is, prior to the CPT's visit in September
2002, it is unlikely that the situation changed much between those
two dates.
The
Court observes from the outset that the parties appear to be in
agreement about the poor state of affairs in Daugavpils prison at the
material time. Furthermore, the CPT describes the prison as being in
a “poor state of repair” in 2002 and “very poor”
in 2004. The Government have not denied or commented upon the
applicant's allegations with regard to the conditions of his
detention. The parties hold divergent views only in relation to
whether or not these conditions attained the threshold of the
“minimum level of severity” required to fall within the
scope of Article 3 of the Convention. The Court is thus required,
firstly, to establish the conditions of the applicant's detention in
Daugavpils prison at the material time and, secondly, to analyse
whether they reached the level of severity required for Article 3 of
the Convention.
Even
though the Government did not explicitly address this issue in their
written observations, they did not deny that the prison was
overpopulated. What is more, together
with their written observations they submitted a document in which a
prosecutor concluded that at the material time Daugavpils prison had
been overpopulated by more than fifty per cent in relation to its
design capacity and that this had led to non-compliance with the
minimum standards (see paragraph 83 above).
The
overpopulation of Daugavpils prison is further evidenced by findings
of the CPT. The CPT observed in the report on its 2002 visit that
cells were frequently overcrowded in that prison (see, for a
similar reference to the CPT's observations on frequent overcrowding,
Alver v. Estonia, no. 64812/01, § 52, 8 November
2005), and that shortly before its visit in September 2002 the
occupancy levels in cells had even been significantly higher. The
Court is aware of the observation contained in the CPT's report to
the effect that the capacity of Daugavpils prison had been increased
from 543 to 800 places; however, that observation contradicts the
information submitted by the Government to the Court (see paragraph 83
above) and to the CPT itself (see paragraph 38 above), according to
which the capacity of the prison was 500-543 places. The Court finds
it sufficient to note that, according to the evidence before it, in
June 2001 and thereafter, that is, at the time when the applicant was
held in Daugavpils prison, the prison had a capacity of 500-543
places and held 800 people. The
Court therefore finds it established to
the standard of proof required under Article 3 of the Convention
that Daugavpils prison was severely overcrowded beyond its design
capacity at the material time. Such overcrowding in itself raises an
issue under Article 3 of the Convention (see Karalevičius
v. Lithuania, no. 53254/99, §§ 36-38, 7 April
2005). The Court points out that it already considered, in a case
concerning the conditions in a short-term detention facility in
Liepāja, that overpopulation to such an extent that four to five
detainees were placed in a cell measuring 6 sq. m, of which 3.5 sq. m
were taken up by a sleeping platform, in itself raised an issue under
Article 3 of the Convention (see Kadiķis v. Latvia (no. 2),
no. 62393/00, § 52, 4 May 2006).
Irrespective
of the reasons for overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its penitentiary
system in such a way as to ensure respect for the dignity of
detainees, regardless of financial or logistical difficulties (see
Mamedova v. Russia,
no. 7064/05, § 63, 1 June 2006).
As
regards the personal space afforded to the applicant, even though the
parties have not furnished any evidence on the measurements of the
cells and the number of inmates held there together with the
applicant, the Court observes that at the material time the domestic
legal standard for the living space was 2.5 sq. m for male adult
prisoners and that, according to the CPT, this does not offer a
satisfactory amount of living space. It is inconceivable that the
applicant could have been afforded more than 2.5 sq. m of
personal space in Daugavpils prison in the context of severe
overcrowding. The Court finds it difficult to believe that even that
amount of personal space could have been afforded to a prisoner in a
severely overcrowded prison. However, since the Court does not have
any evidence to the contrary, it will proceed on the assumption that
during the applicant's stay in Daugavpils prison he was afforded not
more than 2.5 sq. m of personal space.
The
Court reiterates that it has frequently found a violation of Article
3 of the Convention on account of a lack of personal space for
detainees (see, among many other cases, Mayzit v. Russia,
no. 63378/00, §§ 39-43, 20 January 2005; Kantyrev
v. Russia, no. 37213/02, §§ 50-54, 21 June
2007; and Lind v. Russia, no. 25664/05, §§ 59-63,
6 December 2007).
In this connection the Court recalls that in the Peers case
even a cell for two inmates measuring 7 sq. m was taken as a
relevant aspect in finding a violation of Article 3, in
circumstances in which the space factor was coupled with an
established lack of ventilation and lighting (see Peers,
cited above, §§ 70-72).
The
Court further finds, relying on the relevant CPT report, that the
applicant was offered hardly any out-of-cell activity and that the
only available outdoor activity was confined to a small
concrete cubicle covered with a metal grille,
which did not provide enough space for physical exercise.
While it stems from the Government's submissions that prisoners had
access to a library, a chapel, a gym and a common room, the internal
report on which they relied in support of their submission did not
fully corroborate it. According to the report (see paragraph 102
above), prisoners had access only to a chapel and a library, whereas
the gym and common room were reserved for prison staff. The CPT's
reports do not disclose any possibility for prisoners to visit a gym
before 2004 and, accordingly, the Court is not convinced that in 2001
the applicant had such an out-of-cell activity available to him. The
Court regrets to note that the only activity with a rehabilitative
purpose organised for prisoners at that time appears to have been a
Latvian language course, and even that was discontinued in 2002.
The
Court finds that the lack of space in the cells, combined with the
limited freedom of movement outside the cells and the length of the
period during which the applicant was subjected to these conditions,
weighs heavily as an aspect to be taken into account for the purpose
of establishing whether the impugned detention conditions reached the
level of severity required in order to come within the scope of
Article 3 of the Convention (see Karalevičius,
cited above, §§ 36-39 and the case-law cited
therein).
The
Court observes that the applicant's situation resulting from the
overcrowding in Daugavpils prison and the lack of sufficient personal
space was further exacerbated by the poor hygiene conditions and, in
particular, the fact that the applicant did not receive any personal
hygiene products such as soap, toothbrush or toilet paper. The Court
considers that the absence of an adequate supply of such items may
raise an issue under Article 3 of the Convention (see, for example,
Valašinas, cited above, § 104). Unlike
in Valašinas, in the present case the Court has
sufficient evidence before it to establish that the applicant was
deprived of such items in practice (see paragraph 37 above).
Moreover, the ventilation system did not ensure
enough fresh air in the cells and in some cells the access to natural
light was hampered by the metal plates that covered the
windows (see, for similar reasoning, Kadiķis,
cited above, § 53; Aleksandr Makarov v.
Russia, no. 15217/07, §
96, 12 March 2009; and Shilbergs v. Russia,
no. 20075/03, § 97, 17 December 2009). In
addition, the Court observes that the applicant appears to have been
treated for tuberculosis in the Central Prison Hospital in Rīga
shortly after being released from Daugavpils prison and before being
placed in Grīva prison to continue serving his sentence. While
it is not possible to conclude with a sufficient level of certainty
and in the absence of any relevant medical records that the applicant
was infected with tuberculosis while in Daugavpils prison, the Court
considers this to be a characteristic element of the conditions of
detention in that prison (see, for a similarly weighted argument,
Alver, cited above, § 54 and, as regards the problem
of tuberculosis, the CPT report of its 1999 visit to Latvia,
paragraph 35 above).
Finally,
the Court has regard to its case-law in which it has held that even
though the question whether the purpose of the treatment was to
humiliate or debase the victim is a factor to be taken into account,
the absence of any such purpose cannot exclude a finding of a
violation of Article 3 of the Convention (see Peers, cited
above, § 74, and Kalashnikov,
cited above, § 101).
Having
regard to the cumulative effect of those factors, the Court considers
that the conditions of the applicant's detention as described above
were sufficient to cause distress and 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.
The Court finds, accordingly, that there has been a
violation of Article 3 of the Convention on account of the conditions
of the applicant's detention in Daugavpils prison.
III. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION
IN CONJUNCTION WITH THE ARTICLE 3 COMPLAINTS
The
applicant also alleged that he did not have at his disposal an
effective domestic remedy by which to complain about his treatment
during and after arrest (see paragraph 57 above), his treatment in
Jelgava prison (see paragraph 63 above), the conditions of detention
in Daugavpils prison and the specific conditions of detention in the
segregation unit and disciplinary cells nos. 22 and 14 in that prison
(see paragraph 80 above). Article 13 of the Convention reads as
follows:
“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.”
A. Admissibility
The
Court refers to its findings in paragraphs 62, 73, 78, 96 and 98
above and reiterates that the applicant has made out an arguable
claim under Article 3 within the six-month time-limit only in so far
as the conditions of his detention in Daugavpils prison are
concerned.
The
Government submitted in that regard that the applicant had at his
disposal three remedies, each of which was effective, accessible and
offered reasonable prospects of success. First of all, the Government
referred to a judgment of the Constitutional Court of 5 December 2001
in case no. 2001-07-0103, according to which Article 92 of the
Constitution constituted by itself sufficient basis to claim
compensation in the event of a violation of a person's rights.
Secondly, the Government reiterated that every detainee had the
possibility to complain to the competent prosecutor under the Law on
the Prosecutor's Office. The supervision of prisons was one of the
prosecutor's main tasks; the Prosecutor's Office in Latvia belonged
to the judiciary, and a prosecutor's orders were mandatory in
principle. Thus, the applicant could have availed himself of this
procedure. Thirdly, section 130 of the Criminal Law provided for
criminal liability for minor bodily injuries, and the applicant had
the possibility of filing a criminal complaint with the competent
court under section 111 of the former Code of Criminal Procedure. The
Government pointed out that the applicant had not availed himself of
any of those remedies.
The
Government concluded that at the relevant time the applicant had had
real and effective domestic remedies at his disposal, and that his
complaint was manifestly ill-founded or, alternatively, that Article
13 of the Convention had been complied with.
The
applicant disagreed.
The
Court observes that the Government's arguments relate to the merits
of this complaint and considers that this part of the application is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
As
regards the remainder of the applicant's complaints under this
Article, they must be dismissed in accordance with Article 35 §§ 3
and 4 of the Convention.
B. Merits
As the Court has held on many occasions, Article 13
of the Convention guarantees the availability at national level of a
remedy to enforce the substance of the Convention rights and freedoms
in whatever form they may happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(see, amongst many other authorities, Kudła, cited above,
§ 157), although Contracting States are afforded some discretion
as to the manner in which they conform to their Convention
obligations under this provision (see İlhan v. Turkey
[GC], no. 22277/93, § 97, ECHR 2000 VII).
The
scope of the obligation under Article 13 varies depending on the
nature of the applicant's complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be effective in
practice as well as in law, in particular in the sense that its
exercise must not be unjustifiably hindered by the acts or omissions
of the authorities of the respondent State (see İlhan,
cited above, § 97).
The
“effectiveness” of a “remedy” within the
meaning of Article 13 does not depend on the certainty of a
favourable outcome for the applicant. Nor does the “authority”
referred to in that provision necessarily have to be a judicial
authority; but if it is not, its powers and the guarantees which it
affords are relevant in determining whether the remedy before it is
effective. Also, even if a single remedy does not by itself entirely
satisfy the requirements of Article 13, the aggregate of remedies
provided for under domestic law may do so (see, for example, Silver
and Others v. the United Kingdom, 25 March 1983, § 113,
Series A no. 61).
There
is a close affinity between Articles 13 and 35 § 1 of the
Convention (see, for example, Selmouni v. France [GC], no.
25803/94, § 74, ECHR 1999 V). The requirement of
exhaustion of domestic remedies contained in the latter is based on
the assumption that there exists an effective domestic remedy
available in respect of the alleged breach of an individual's
Convention rights (see Kudła, cited above, § 152).
In other words, the notion of “effectiveness” is
essentially the same in both provisions (see Kadiķis,
cited above, § 59).
Further, the Court has held that the compensation for
non-pecuniary damage should as a matter of principle be available as
part of the range of possible remedies for a breach of Articles 2 and
3, which rank as the most fundamental provisions of the Convention
(see, as concerns a violation of Article 3 on account of lack of
adequate medical care of a prisoner, Keenan v. the United Kingdom,
no. 27229/95, § 130, ECHR 2001 III; and, as concerns a
violation of Article 2 on account of State's failure to intervene to
safeguard the lives of the applicant's children Kontrová v.
Slovakia, no. 7510/04, § 64, ECHR 2007 VI
(extracts)). The Court has also ruled that an effective remedy within
the meaning of Article 35 § 1 of the Convention for
complaints about the conditions of detention can be both preventive
and compensatory (see Melnik, cited above, § 68).
In
the present case the Court notes that it was not suggested that any
remedies were available to the applicant other than the three avenues
of complaint consisting in an application to a court of general
jurisdiction to claim compensation on the basis of Article 92 of the
Constitution, an application to a prosecutor to exercise his powers
under the Law on Prosecutor's Office and an application to a court to
initiate a private prosecution for minor bodily injuries.
As regards the first of those remedies, the
Government quoted the relevant provision of the Constitution, as
interpreted by the Constitutional Court, and submitted that by
invoking that provision the applicant could, in principle, apply to a
court of general jurisdiction to claim compensation for any damage
incurred. The Government have not demonstrated that this remedy was
effective and available to the applicant in theory and practice (see,
mutatis mutandis, McFarlane v. Ireland [GC], no.
31333/06, § 114, 10 September 2010) since they have not
provided any examples of cases where domestic courts of general
jurisdiction had admitted and examined similar claims concerning
prisoners' conditions of detention at the material time. The Court
reiterates that it is not for the Convention bodies to cure of their
own motion any shortcomings or lack of precision in the respondent
Government's arguments (see Stran Greek Refineries and Stratis
Andreadis v. Greece, 9 December 1994, § 35, Series A no.
301 B). Accordingly, the Court is not satisfied that such a
remedy was effective in practice for the present purposes and could
have afforded any compensatory redress to the applicant.
In
relation to the second remedy proposed by the Government, the Court
has already analysed its effectiveness in relation to the
Government's preliminary objection of exhaustion of domestic remedies
(see paragraph 88 et seq. above) and concluded that it was not
effective in the circumstances of the present case. The Government
did not provide any material that would show that the prosecution
authorities had exercised their powers under the Law on the
Prosecutor's Office, which according to the Government were quite
extensive, in so far as the applicant was concerned despite their
apparent knowledge of the situation. In addition, the Government did
not provide any examples of domestic practice in which the
Prosecutor's Office had examined a similar complaint and had offered
any redress to individuals complaining about their conditions of
detention at the material time (see Kadiķis, cited above,
§ 62 for a similar conclusion).
Finally,
with regard to the third remedy proposed by the Government, the Court
does not consider that an application to initiate a private
prosecution for minor bodily injuries could constitute an effective
remedy in respect of a prisoner's complaint about the conditions of
his or her detention.
The Court finds that in the present case the Government have not
shown that the applicant had at his disposal effective remedies with
regard to the conditions of his detention in Daugavpils prison. The
Government have failed to prove that the three venues of complaint
under domestic law they invoke would have prevented a breach of the
applicant's rights contained in Article 3 of the Convention, provided
further preventive redress and offered compensatory redress.
The
Court concludes, therefore, that there has been a violation of
Article 13 of the Convention on account of the lack of an
effective remedy under domestic law for the applicant's complaint in
respect of the conditions of his detention in Daugavpils prison.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Complaints under Articles 5 and 6 of the Convention
and under Article 2 of Protocol No. 7 to the Convention
Under
Article 5 of the Convention, the applicant claimed that his arrest on
2 June 1998 had been unlawful in that he had not been informed
of the reasons and had not been brought promptly before a judge.
Under Article 6 of the Convention, he criticised the unfairness of
the criminal proceedings against him, alleging that the courts had
erred in their assessment of the facts and in the application of the
law. He also complained that he had been deprived of his defence
rights on account of the fact that following his arrest, between 2
June and 4 June 1998, he had not been represented by defence counsel.
Finally, under Article 2 of Protocol No. 7 to the Convention the
applicant complained that his inability to obtain a judicial review
of the final decision in his case was in breach of his right of
appeal in criminal matters.
The
Court notes that the applicant's arrest, his trial and his subsequent
attempt to obtain a retrial after the final judgment had entered into
force, took place in 1998 and 1999, that is, considerably more than
six months before the application was lodged with the Court. It
follows that these complaints were introduced out of time and must be
declared inadmissible in accordance with Article 35 §§ 1
and 4 of the Convention.
B. Complaint under Article 14 of the Convention
The
applicant complained under Article 14 of the Convention that he had
been discriminated against in that he had not been able to submit his
complaints to the State authorities in Russian, his mother tongue. He
did not specify in relation to which Convention right he invoked this
provision.
The Court reiterates that linguistic freedom as such is not amongst
the rights and freedoms governed by the Convention, and that
with the exception of the specific rights stated in Articles 5 §
2 and 6 § 3 (a) and (e), the Convention per
se does not guarantee the right to
use a particular language in communications with public authorities
or the right to receive information in a language of one's choice
(see Mentzen v. Latvia (dec.), no. 71074/01,
ECHR 2004-XII). Moreover, it appears from the
file in the present case that the authorities indeed examined the
applicant's submissions and replied to him, despite the fact that his
letters had been written in Russian and not in Latvian (see Igors
Dmitrijevs v. Latvia, no. 61638/00, § 85, 30 November
2006).
It
follows that this complaint is manifestly ill-founded and must be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
V. 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. Pecuniary damage
In respect of pecuniary damage the applicant
claimed 1,000,000 euros (EUR) for the future medical expenses he
considered to be necessary.
The
Government submitted that the applicant's claim was purely
hypothetical and speculative.
The
Court, having regard to its findings concerning the applicant's
complaints under Articles 3 and 13 of the Convention, considers that
no causal link has been established between the damage alleged and
the violations it has found (see Kalashnikov,
cited above, § 139).
B. Non-pecuniary damage
The
applicant claimed EUR 2,000,000 in respect of non-pecuniary damage
for the suffering he had endured.
The
Government submitted that the finding of a violation would constitute
adequate compensation in the present case in view of the applicant's
personality, his criminal record and his behaviour during
imprisonment. Alternatively, they considered that any award should
not exceed EUR 5,000, the amount awarded in the case of Farbtuhs
v. Latvia (no. 4672/02, 2 December 2004),
which they considered to be of a similar nature.
The
Court considers that the finding of a violation does not provide
sufficient just satisfaction in the circumstances of the present
case. Taking into consideration all the relevant factors, including
the period of time spent in the conditions of detention contrary to
Article 3 of the Convention and the lack of an effective remedy in
that regard, and taking the view that the circumstances of the
Farbtuhs case were different, the Court, deciding on an
equitable basis, awards the applicant EUR 11,700 in respect of
non-pecuniary damage plus any tax that may be chargeable on that
amount.
C. Costs and expenses
The
applicant did not lodge any claim under this head.
D. 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
Rejects the Government's request to strike the
application out of its list of cases;
Declares
the applicant's complaints under Article 3 of the Convention
concerning the conditions of his detention in Daugavpils prison and
under Article 13 in that regard admissible;
Declares the remainder of the application
inadmissible;
Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention in Daugavpils prison;
Holds that there has been a violation of
Article 13 of the Convention on account of the lack of effective
domestic remedies with regard to the conditions of his detention in
Daugavpils prison;
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 11,700
(eleven thousand seven hundred euros) in respect of non-pecuniary
damage, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement, plus any tax
that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
