European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF DOLGOV AND SILAYEV v. RUSSIA

 

(Applications nos. 11215/10 and 55068/12)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

4 October 2016

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Dolgov and Silayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 11215/10 and 55068/12) 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 two Russian nationals, Mr Vladimir Ivanovich Dolgov and Mr Sergey Alekseyevich Silayev (“the applicants”), on 1 August 2011 and 1 August 2012, respectively.

2.  The first applicant, who had been granted legal aid, was represented by Ms Y. Yefremova, a lawyer with the International Protection Centre in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  The applications were communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

A.  The case of Mr Dolgov

4.  The first applicant was born in 1952 in the Novosibirsk Region.

5.  On 25 January 1996 the Krasnoyarsk Regional Court convicted him of murder, assault on a public official and other crimes and sentenced him to death. By a Presidential pardon of 17 May 1999, the death sentence was commuted to life imprisonment.

6.  Since 24 December 1999 the first applicant has served his sentence in the IK-2 facility for life prisoners in the Perm Region. He has changed cell several times. It appears from the original registration logs and floor plans submitted by the Government that all the cells measured 10.5 or 11.3 square metres and were designed to accommodate up to three prisoners. The first applicant has never had more than two cellmates.

7.  As regards the conditions of his detention between 1999 and 2009, the first applicant submitted that the toilet was located in the corner of the cell, behind a one-metre-high partition. It was connected to the sewer directly, without a U-bend pipe, and foul smells stayed in the cell. The window did not open and access to natural light was restricted because of a metal sheet fixed directly outside the window.

8.  The first applicant stated that in 2009 major repair works had been carried out and the conditions had improved. The toilets and ventilation had been repaired, a higher partition and a door installed, the window shutters removed, and access to natural light and air had been improved.

B.  The case of Mr Silayev

9.  The second applicant was born in 1969 in Moscow.

10.  On 3 December 1997 the Moscow City Court found him guilty of several murders and rape, and sentenced him to life imprisonment.

11.  Since 10 March 1998 the second applicant has served his sentence in the IK-5 facility for life prisoners in the Vologda Region. The facility is located on an island in a former monastery that was built in 1810 and converted into a prison in 1996. Individual cells have no running water or sewerage. Prisoners have a water tank and a bucket instead.

12.  In 2011, a supervising prosecutor instituted infringement proceedings against the facility’s management under Article 45 of the Code of Civil Procedure, seeking to enforce compliance with legal requirements. The prosecutor noted that only the mess, kitchen, bathhouse and shared toilets on each floor had centralised water supply, whereas the individual cells had no running water or sewage connection. Water was supplied from an artesian well but it fell short of sanitary requirements because it contained too much iron and sediment. Cells had no ventilation. Prisoners were given buckets for their daily needs: one bucket of water for drinking and washing and one to use as a toilet. Every day prisoners took their toilet buckets to the toilet at the end of the corridor where they emptied and washed them. This had to do be done by the prisoners while their hands remained handcuffed behind their back, in compliance with standard practice. In 2009 the Federal Penitentiary Service had prepared an engineering and design blueprint for connecting all the cells to the mains and sewers but funding for the project had not been allocated. The prosecutor asked the court to require the facility’s management and the regional branch of the Federal Penitentiary Service to connect all the cells to the water supply and sewers, to install ventilation and to improve the quality of the water.

13.  By a judgment of 24 August 2011, the Belozerskiy District Court of the Vologda Region granted the prosecutor’s claim and directed the management of the prison to connect all the cells to the mains, sewers and a ventilation system within one year and to improve the water quality within six months.

14.  In 2013, the second applicant sued the Ministry of Finance for compensation for non-pecuniary damage caused by the substandard sanitary conditions at the IK-5 facility. By a judgment of 17 April 2013, upheld on appeal on 21 June 2013, the Belozerskiy District Court dismissed his claim as unfounded. It found that the cell was ventilated through a small opening in the window and that the temperature was normal, that there was a toilet consisting of a bucket with a lid, and a tank for drinking water, and that sanitary regulations did not require the installation of a sewage system “in territories where sewers were not available”. The court also noted that the claimant had not produced any evidence showing that the conditions of his detention in the period between 1998 and 2013 had been inadequate.

THE LAW

I.  JOINDER OF THE APPLICATIONS

15.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

16.  The applicants complained that the conditions of their detention had been inhuman and degrading, 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.  Admissibility

17.  The Government submitted that an initial period of the second applicant’s detention, from 10 March to 5 May 1998, fell outside the Court’s jurisdiction ratione temporis. Even though the case did not appear to raise any issues regarding compliance with the six-month rule because the applicants had been continuously detained in the same facilities, the Government reiterated that the purpose of the rule was to enable the Court to ascertain the facts of a case before that possibility faded away. The applicants, for their part, had a duty to act promptly to bring their grievance to the attention of the national authorities and the Court without undue delay. In the instant case, however, the applicants had taken no action for an extended period of time - over fourteen years in the case of the second applicant - before lodging their complaints with the Court and the national authorities. It appeared therefore that the applicants had had no interest in putting an end to the continuing violation of their rights before filing their applications with the Court. The Government argued that the complaint was therefore belated and inadmissible.

18.  The first applicant submitted in reply that he had not had any effective domestic remedies for his complaints and that he had feared reprisals from the prison’s management for complaining about their actions.

19.  The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. The rule should ensure that it is possible to ascertain the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-41, 29 June 2012, and Artyomov v. Russia, no. 14146/02, § 107, 27 May 2010, with further references).

20.  Both applicants complained not of an isolated act but rather of a situation in which they had been for some time and which was to last until it ended. The Court has previously held that it would be excessively formalistic to demand that an applicant denouncing such a situation should file a new application at regular intervals for as long as his or her detention in the inadequate conditions continues (see Dubov v. Russia, no. 16747/12, § 14, 15 October 2015, with further references). As a general rule, a period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012). However, a significant change in the detention regime, even where it occurs within the same facility, has been held by the Court to put an end to the “continuous situation” (ibid., § 77).

21.  As regards the first applicant, the Court notes that, by his own admission, there was a marked change in the conditions of his detention in 2009 (see paragraphs 7 and 8 above). However, he lodged his application with the Court only in 2011, more than six months after that change. Accordingly, the part of his complaint relating to the period before 2009 has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

22.  As regards the second applicant, the Court agrees with the Government that the part of his complaint about the initial period of his detention until 5 May 1998, the date the Convention entered into force in respect of Russia, falls outside its jurisdiction ratione temporis and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

23.  As for the later period of the second applicant’s detention, the conditions in which he has been held and the problems he complained about - the lack of running water and proper sanitation - remained essentially the same throughout the entire period up to the date of his application. It would have been preferable if the second applicant had acted with greater expedition in bringing his case before the Court for examination (see Artyomov, cited above, § 115), yet as long as his detention constituted a “continuing situation” and the Court is not prevented from establishing the facts on account of the amount of time that has already lapsed, his complaint cannot be rejected as belated or manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Since it is not inadmissible on any other grounds, it must therefore be declared admissible.

B.  Merits

24.  The Government submitted that the conditions of the first applicant’s detention had not been in breach of Article 3 of the Convention. They acknowledged that there had been a violation of that provision on account of the conditions of the second applicant’s detention.

25.  The Court notes that the prison where the first applicant has been detained was not overcrowded and that he has had at his disposal at least three square metres of floor space (see paragraph 6 above). The number of sleeping places was sufficient for the number of prisoners and it cannot be said that the overall dimensions of the cells were so small as to restrict the inmates’ freedom of movement beyond the threshold tolerated by Article 3 (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 134, 17 January 2012). The toilet was separated from the rest of the cell and had a door; this arrangement offered some privacy to those using it. Following the removal of metal shutters from the windows, the access to natural light and air also appears to have been sufficient (see paragraph 8 above). In those circumstances, the Court does not consider that the conditions of the first applicant’s detention, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention. Therefore, there has been no violation of that provision in respect of the first applicant.

26.  As regards the second applicant, who has been detained for more than twelve years in cells without water supply or sewerage, the Court reiterates that the lack of access to proper sanitary facilities, particularly for such a long period of time and, it appears from the facts of the case, without any hope of improvement in the near future, is in itself sufficient for the finding of a violation of Article 3 (see Gorbulya v. Russia, no. 31535/09, § 94, 6 March 2014). Such conditions diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him (see also Kasperovičius v. Lithuania, no. 54872/08, §§ 38-39, 20 November 2012). There has accordingly been a violation of Article 3 of the Convention in respect of the second applicant.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  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.”

28.  The second applicant claimed 5,000,000 euros (EUR) in respect of non-pecuniary damage.

29.  The Government considered the claim to be excessive.

30.  The Court reiterates that the length of time spent in inhuman or degrading conditions is the relevant factor when assessing the extent of non-pecuniary damage (see Ananyev and Others, cited above, § 172). In the instant case, however, having regard to the long delay in filing the application, the Court considers it appropriate to award the second applicant a lump sum of EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

31.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the first applicant’s complaint about the conditions of his detention after 2009 and the second applicant’s complaint about the conditions of his detention after 5 May 1998 admissible and the remainder of the complaints inadmissible;

 

3.  Holds that there has been no violation of Article 3 of the Convention in respect of the first applicant;

 

4.  Holds that there has been a violation of Article 3 of the Convention in respect of the second applicant;

 

5.  Holds

(a)  that the respondent State is to pay the second applicant, within three months,  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

6.  Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                         Helen Keller
Deputy Registrar                                                                       President