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GELD v. RUSSIA - 1900/04 [2012] ECHR 524 (27 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/524.html
Cite as:
[2012] ECHR 524
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FIRST
SECTION
CASE OF GELD v. RUSSIA
(Application
no. 1900/04)
JUDGMENT
STRASBOURG
27
March 2012
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 Geld v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1900/04)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Sergey Ivanovich Geld (“the applicant”),
on 19 November 2003.
2. The
applicant was represented by Mr P. Finogenov, a lawyer practising in
Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The
applicant alleged, in particular, that he had been detained in
extremely poor conditions in facility no. 1 in Perm.
On
4 September 2008 the application
was communicated to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1975 and lives in Perm.
A. Criminal proceedings against the applicant
On
30 December 2002 criminal proceedings were initiated against the
applicant, a traffic police officer at the time, and his partner on
suspicion of theft and abuse of office. In February 2003 the
applicant was served with the bill of indictment. An undertaking not
to leave his place of residence was imposed on him.
On
21 March 2003 the applicant was arrested and placed in detention
facility no. 1 in Perm.
Four
months later the Motovilikhinskiy District Court of Perm found the
applicant guilty as charged and sentenced him to four years’
imprisonment. The court relied on numerous witness testimonies and
forensic evidence. The applicant appealed. In his grounds of appeal
he complained that the trial court had incorrectly assessed the facts
and applied the law, and that it had not thoroughly examined the
evidence, thus failing to take into account certain important issues.
The judgment became final on 11 September 2003 when the Perm Regional
Court upheld it on appeal.
B. Conditions of the applicant’s pre-trial
detention
From
21 March to 25 September 2003 the applicant was held in facility no.
1 in Perm. In particular, from 21 March to 19 May 2003 he was kept in
cell no. 26 and from 19 to 20 May 2003 he stayed in cell no. 19. On
20 May 2003 he was transferred to cell no. 84 from which, on the
following day, he was taken to cell no. 144, having remained there
until 25 September 2003.
Relying
on a certificate prepared by the director of the detention facility
on 17 October 2008, the Government submitted that cell no. 26
measured 59.4 square metres and accommodated, in general, thirteen
inmates. Cell no. 19 measured 25.9 square metres and on average
housed twelve inmates. The average number of detainees staying in
cell no. 84 of 22.2 square metres was ten, and seven inmates were
usually kept in cell no. 144 which measured 23.1 square metres.
The Government stressed that at all times the applicant had an
individual sleeping place and bedding.
Citing
the information provided by the director of the facility, the
Government further argued that the sanitary conditions in the cells
were satisfactory. In particular, the
Government submitted that the cells received natural light and
ventilation through a window measuring approximately 1.2 square
metres. The cells also had artificial ventilation. Each cell was
equipped with a lavatory pan, a sink and a tap with running water.
The lavatory pan was separated from the living area of the cell by a
partition measuring between 1.33 and 1.42 metres in height. Inmates
were allowed to take a shower once every seven days for no less than
fifteen minutes. The cells were regularly disinfected. The cells were
equipped with lamps which functioned day and night. The Government,
relying on the information provided by the director of the facility,
further stated that the applicant was given food “in accordance
with the established norms”.
The
applicant disputed the Government’s submission, arguing that
the four cells had been smaller and had accommodated a far greater
number of inmates than the Government had described. Relying on
written statements by Mr U. who had also been detained in cell
no. 144 in the summer of 2003, the applicant submitted that that
cell had measured approximately sixteen metres, had eleven sleeping
places and housed thirteen to fourteen inmates. Given the lack of
beds, inmates had slept in shifts. They were not provided with
bedding. He had had to stay in overcrowded conditions for the entire
day, save for an hour-long outdoor walk in the recreation yard.
13. The
applicant further submitted that the sanitary conditions had been
appalling. The cells were infested with insects but the management
had not provided any insecticide. The walls in the cells were covered
with fresh paint. Given the absence of natural or artificial
ventilation, the strong smell of paint lingered in the cells. The
applicant stressed that the windows were covered with metal blinds
blocking access to natural light and air. It was extremely hot during
the summer with the metal blinds turning into heated “radiators”
under the direct sunlight. Inmates were allowed to smoke in the
cells, which was an additional aggravated circumstance for the
applicant, a non-smoker. The lavatory pan was placed on a concrete
block elevated fifty centimetres above the floor and situated
between 0.8 to 1 metre from the dining area. The toilet was not
separated from the living area and emitted an unpleasant odour in the
cell. At no time did inmates have complete privacy. Anything they
happened to be doing – using the toilet, sleeping – was
in view of the guard or fellow inmates. No toiletries were provided.
The food was of very poor quality and in scarce supply.
Relying
on inmate U.’s written statement, the applicant concluded by
noting that complaints to the administration of the detention
facility had been to no avail.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW REPORTS
The
relevant provisions of domestic and international law on conditions
of detention are set out, for instance, in the Court’s judgment
in the case of Gladkiy v. Russia (no. 3242/03,
§§ 36, 38 and 50, 21 December 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the conditions of his detention in facility
no. 1 in Perm had been in breach of Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
In
their first line of argument, the Government submitted that the
applicant had failed to exhaust domestic remedies. In particular,
they stressed that the applicant could have lodged an action with a
competent court, complaining about the conditions of his detention.
The Government stressed that there existed an effective
judicial practice of tort actions in the Russian Federation, by which
detainees were able to obtain compensation for damage resulting from
their detention in unsatisfactory conditions. The Government cited
the case of a Mr D., who had been awarded 25,000 Russian roubles
(RUB) against the Federal Service for Execution
of Sentences in compensation for damage following
his being infected with scabies in a remand prison. They also noted
that another Russian detainee, Mr R., had been awarded RUB 30,000 for
his unlawful detention for more than fifty-six days and his not being
provided with food during five days of his detention.
In the alternative, the
Government, while alleging that the applicant’s complaint was
manifestly ill-founded, acknowledged that the domestic sanitary norm
of four square metres of personal space per inmate had not always
been respected in detention facility no. 1. However, they stressed
that a failure to respect such a sanitary norm should not immediately
lead to the finding of a violation of Article 3 of the Convention, as
the Court should take into account the remaining features of the
conditions of the applicant’s detention (such as lighting,
sanitary conditions, privacy, inter alia) which had complied
with domestic legal requirements and the guarantees of Article 3 of
the Convention.
In
their further observations, the Government cited two more judgments
by Russian courts, with a view to supporting their initial argument
as to the effectiveness of the tort action in question. In
particular, relying on a short article from an Internet source, they
submitted that a Mr T. had obtained compensation in the amount
of RUB 25,000 for having contracted tuberculosis during his almost
three-year detention in facility no. 1 in Perm. They further
cited another case which had led to an award of RUB 1,500 in
compensation for non-pecuniary damage sustained as a result of the
plaintiff’s detention for more than a year in overcrowded
conditions.
Relying
on the written statement by his fellow inmate, Mr U., the applicant
insisted that the conditions of his detention had been inhuman and
degrading. He steadfastly maintained his description of the detention
conditions, alleging severe overcrowding, poor sanitary conditions,
insufficient lighting, inadequate food, and so on.
B. The Court’s assessment
1. Admissibility
Exhaustion issue
As
to the Government’s objection concerning the applicant’s
alleged failure to exhaust domestic remedies, the
Court has already rejected identical objections by the Russian
Government in a number of cases regarding conditions of detention,
having found that neither a complaint to the administration of a
detention facility (see Benediktov v. Russia,
no. 106/02, § 29, 10 May 2007, with further references) nor
a tort action (see, for example, Aleksandr
Makarov v. Russia, no. 15217/07,
§§ 82-91, 12 March 2009; Artyomov
v. Russia, no. 14146/02, § 112, 27
May 2010; Arefyev v. Russia, no. 29464/03,
§ 54, 4 November 2010; and, most recently, Gladkiy,
cited above, § 55)
could be regarded as an effective remedy for the purpose of Article
35 § 1 of the Convention. Moreover, in the case of Nazarov
v. Russia (no. 13591/05, § 77,
26 November 2009) the Court dealt with the Government’s
argument on the basis of the reference to the awards that had been
made by the Russian courts in favour of a Mr D. and a Mr R. The Court
noted that the problems arising from the conditions of the
applicant’s detention had apparently been of a structural
nature, for which no effective domestic remedy had been shown to
exist, and that the cases to which the Government had referred did
not concern detention in overcrowded cells but rather a detainee’s
infection with scabies and the authorities’ failure to provide
a detainee with food (see, for similar reasoning, Nedayborshch
v. Russia, no. 42255/04, § 21, 1 July 2010, and
Arefyev, cited above, § 54).
The Court sees no reason to depart from its previous findings in the
present case. Accordingly, it dismisses the Government’s
objection as to non-exhaustion of domestic remedies. This conclusion
is not altered by the Government’s reference to two more
judgments awarding compensation to former inmates. Both cases provide
little evidentiary support for the Government’s argument and
have weak relevance to the present case (see, mutatis
mutandis, Shilbergs v. Russia, no. 20075/03,
§§ 66-79, 17 December 2009).
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention and
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
2. Merits
The
Court observes that the parties have disputed certain aspects of the
conditions of the applicant’s detention in facility no. 1
in Perm. However, there is no need for the Court to establish the
veracity of each and every allegation, because it finds a violation
of Article 3 on the basis of the facts which have been presented
to it and which the respondent Government did not refute.
The
focal point for the Court’s assessment is the living space
afforded to the applicant in the detention facility. The
applicant claimed that the number of detainees in the cells had
considerably exceeded their design capacity. Although in their final
observations to the Court the Government no longer disputed the
overcrowding in the majority of the cells, the Court still considers
it necessary to address the evidence presented to it by the
Government in support of their description of the conditions of the
applicant’s detention.
The
Court notes that in their initial observations the Government,
relying on certificates issued by the director of the detention
facility five years after the applicant’s detention in
that facility had come to an end, submitted that the applicant had
had an individual sleeping place at all times. At the same time they
did not refer to any original source of information on the basis of
which their assertion could be verified. In this connection, the
Court notes that on several previous occasions when the Government
have failed to submit original records it has held that documents
prepared after a considerable period of time cannot be viewed as
sufficiently reliable, given the length of time that has elapsed
(see, among recent authorities, Novinskiy v. Russia,
no. 11982/02, § 105, 10 February 2009, and
Shilbergs, cited above, § 91). The Court is of the view
that these considerations hold true in the present case. The
certificates prepared by the Russian authorities five years after the
events in question cannot be regarded as sufficiently reliable
sources of data.
Accordingly,
having regard to the Government’s admission in their
observations (see paragraph 18 above), as well as, their failure to
submit any convincing relevant information, the Court finds it
established that the cells in facility no. 1 were overcrowded. The
Court also accepts the applicant’s
submissions that, owing to the overpopulation in the cells and the
resulting lack of sleeping places, he had to take turns with other
inmates to rest.
Irrespective
of the reasons for the 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).
The
applicant’s situation was further exacerbated by the fact that
the opportunity for outdoor exercise was limited to one hour a day,
leaving him with twenty-three hours per day of detention in facility
no. 1 without any kind of freedom of movement. The Court also
does not lose sight of the applicant’s argument, as supported
by the written statements of his fellow inmate, that the windows in
the cells were covered with metal shutters. In these circumstances,
the Court is not convinced by the Government’s argument that
the windows had given access to natural light and air. The metal
construction on the windows, as described by the applicant,
significantly reduced the amount of daylight that could penetrate
into the cell, and cut off fresh air. It therefore appears that the
applicant had to spend a considerable part of each day in the
facility in a cramped cell with no window in the proper sense of the
word (compare Peers v. Greece, no. 28524/95, § 75,
ECHR 2001 III). Furthermore, the Court notes that the fact
that the applicant had access to a shower and could wash his linen
and clothes only once a week raises serious concerns as to the
conditions of hygiene and sanitation, given the acutely overcrowded
accommodation in which he found himself (see, for similar reasoning,
Melnik v. Ukraine, no. 72286/01, § 107,
28 March 2006). Lastly, the Court is particularly concerned with
the authorities’ failure to separate non-smoking detainees from
smoking ones. On a number of occasions the Court has already treated
exposure of a non-smoking detainee to environmental tobacco smoke in
overcrowded cells as an additional aggravating circumstance (see, for
instance, Pavalache v. Romania, no. 38746/03,
§ 94, 18 October 2011).
To
sum up, the Court has frequently found a violation of Article 3 of
the Convention on account of lack of personal space afforded to
detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104
et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44
et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§§ 41 et seq., 2 June 2005; Mayzit v. Russia,
no. 63378/00, §§ 39 et seq., 20 January 2005;
Kalashnikov v. Russia, no. 47095/99, §§ 97
et seq., ECHR 2002-VI; and Peers, cited above, §§ 69
et seq.).
Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. Although in the present case there is
no indication that there was a positive intention to humiliate
or debase the applicant, the Court finds that the fact that he was
obliged to live, sleep and use the toilet in the same cell as so many
other inmates for more than six months was itself sufficient to
cause distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention, and to arouse in him
feelings of fear, anguish and inferiority capable of humiliating and
debasing him.
The
Court finds, accordingly, that there has been a violation of Article
3 of the Convention because the applicant was subjected to inhuman
and degrading treatment on account of the conditions of his detention
in facility no. 1 in Perm.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 250,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contended that the claim was unsubstantiated and
unreasonable.
The
Court reiterates, firstly, that the applicant cannot be required to
furnish any proof of the non-pecuniary damage he has sustained (see
Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).
It further notes that it has found a grave violation in the present
case. In these circumstances, the Court considers that the
applicant’s suffering and frustration, caused by the inhuman
conditions of his detention, cannot be compensated for by a mere
finding of a violation. However, the particular amount claimed
appears excessive. Making its assessment on an equitable basis, it
awards the applicant EUR 7,500 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
The
applicant did not make any claims for costs and expenses incurred
before the domestic courts and the Court.
Accordingly,
the Court does not award anything under this head.
C. Default interest
The Court considers it appropriate that the default
interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the conditions
of the applicant’s detention in facility no. 1 in Perm
admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,500
(seven thousand and five hundred euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of the settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
