THIRD SECTION

CASE OF LOBKOV AND RASSOLOV v. RUSSIA

(Applications nos. 43215/10 and 56270/10)

JUDGMENT

STRASBOURG

14 February 2017

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

In the case of Lobkov and Rassolov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 24 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 43215/10 and 56270/10) 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 Dmitriy Mikhaylovich Lobkov and Mr Sergey Vasilyevich Rassolov (“the applicants”), on 3 July and 11 August 2010, respectively.
2.  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.  On 13 April 2012 the applications were communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASES
Section 1.01	A.  The case of Mr Lobkov (application no. 43215/10)
4.  The first applicant was born in 1980 and lives in Sharya, the Kostroma Region.
5.  The applicant was held in remand prison IZ-44/1 in Kostroma in the following cells:
Cell no.	Surface, sq. m	Dates of stay	
29	12.9	16/02/2009-07/05/2009	
49	18	07/05/2009-15/06/2009
24/07/2009-17/11/2009
12/03/2010-26/08/2010	
43	9.4	15/06/2009-03/07/2009	
6.  The parties disagreed on the design capacity of the cells and the actual number of inmates.
7.  The first applicant, relying on three hand-written statements from his co-detainees, submitted that Cell 49 had contained three two-tier bunk beds with metal sheets welded to beds on the upper and lower levels to create additional sleeping places. Cell 49 was used to accommodate between ten and twenty prisoners. Cell 43 contained two two-tier bunk beds and accommodated four prisoners.
8.  The Government submitted that the number of prisoners in the cells had not exceeded the occupancy limit. Cell 29 had three sleeping places, Cell 49 four places and Cell 43 two places. They submitted selected pages from the prison registration log. All of these pages, except one dated 24 July 2009, indicate that Cell 49 was designed for four persons and accommodated as many prisoners. The number “4” appears to be written over a different number that was erased. The entry of 24 July 2009 indicated that Cell 49 was designed for ten persons and accommodated eight prisoners. Similarly, the entries in respect of Cell 29 show traces of erasures and alterations. Its design capacity is listed as two or three places and the actual population is always three prisoners.
Section 1.02	B.  The case of Mr Rassolov (application no. 56270/10)
9.  The second applicant was born in 1958 and has been serving his term of imprisonment in Ivdel, the Sverdlovskiy Region.
10.  Between 14 July 2009 and 4 July 2010 the second applicant was held in remand prison IZ-59/1 in the Perm Region. According to him, the facility was overcrowded. In particular, Cell 90 measuring 40 sq. m accommodated up to sixteen inmates.
11.  According to the Government, the second applicant was held in cells 80, 90, 92, 98 and 103. The actual number of inmates detained in the cells did not exceed their designed capacity. Each inmate had more than 3 sq. m of personal space. Other conditions were satisfactory. The Government submitted selected pages from registration logs, some of which appears to contain erasures and alterations in the fields showing the number of inmates in Cell 90. On some pages the listed total number of inmates is ten less than the number produced by adding up the population of individual cells.
THE LAW
Article II.	I.  JOINDER OF THE APPLICATIONS
12.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
13.  The applicants complained that the conditions of their detention 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.”
14.  The Government claimed that there had been no overcrowding in the two remand prisons and that other aspects of detention had been in compliance with national law.
Section 3.01	A.  Admissibility
15.  The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
16.  An outline of the Court’s case-law under Article 3 of the Convention relating to the problem of prison overcrowding can be found in a number of judgments (see Muršić v. Croatia [GC], no. 7334/13, §§ 102-141, 20 October 2016; Idalov v. Russia [GC], no. 5826/03, §§ 91-102, 22 May 2012, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 121-166, 10 January 2012).
17.  The Court observes that the parties disagreed as to the specific conditions of the applicants’ detention. It reiterates that in cases concerning allegations of inadequate conditions of detention where the respondent Government alone have access to information capable of corroborating or refuting the applicant’s allegations, the burden is on them to collect and produce relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Ananyev and Others, cited above, § 123).
18.  The applicants made a case of overcrowding in the remand prisons, listing the cells in which they had been held, their size, the number of sleeping places and the actual number of detainees. In support of their submissions as to the cell population and the availability of an individual sleeping place, the Government provided a number of documents, including prison registration logs.
19.  The Court observes that the data in respect of the number of inmates in the cells where the applicants were held carries traces of alterations, for which no explanation was advanced. It is significant that only the entries concerning the applicants’ cells were affected, the entries in respect of the other cells appear to have remained intact. The Government did not indicate at what time and for what purpose the information in the register had been altered. Nor did they offer any explanation for sudden and significant fluctuations in the design capacity of Cell 49, from 4 to 10 places, in the first applicant’s case (see paragraph 8 above). The Court reiterates that alterations in a prison population register, without any explanations as to their origin, reason and timing, make the information contained in it unreliable (see Glotov v. Russia, no. 41558/05, § 25, 10 May 2012; Manulin v. Russia, no. 26676/06, § 43, 11 April 2013; and Klyukin v. Russia, no. 54996/07, § 59, 17 October 2013).
20.  In the view of the above, the Court considers that the Government’s evidence is not sufficiently convincing. The Court accepts therefore the applicants’ submissions as to the number of inmates in their cells.
21.  As the personal space per prisoner was below 3 sq. m which is the relevant minimum standard under Article 3 of the Convention and as the Government did not rebut the strong presumption of a violation of that provision by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see Muršić, cited above, §§ 136-137), the Court finds a violation of Article 3 on account of the conditions of the applicants’ detention, which amounted to inhuman and degrading treatment within the meaning of that provision.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3
22.  The applicants also complained under Article 13 of the Convention taken in conjunction with Article 3, that they did not have at their disposal an effective domestic remedy capable of improving poor conditions of their detention.
23.  The Government submitted that the applicant had not tried to exhaust any domestic remedies.
24.  In Ananyev and Others (cited above, § 119), the Court has already found that the Russian legal system did not provide an effective remedy that could be used to prevent the alleged violation or its continuation and provide applicants with adequate and sufficient redress in connection with a complaint about inadequate conditions of detention. The Government have presented no arguments or evidence to enable the Court to reach a different conclusion in the cases at hand. In the light of the violation found in respect of the applicants’ complaint under Article 3 of the Convention, thus confirming its “arguable” nature, the Court concludes that the complaint under Article 13 is admissible. It further finds that the applicants had no effective domestic remedy at their disposal in respect of their complaint concerning the conditions of detention.
25.  There has accordingly been a violation of Article 13 of the Convention.
Article V.	IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
26.  Lastly, the applicants complained of other violations of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article VI.	V.  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 applicants claimed 32,000 and 1,245 euros (EUR), respectively, in respect of non-pecuniary damage. The Government considered the amount claimed by the first applicant excessive but accepted the second applicant’s claim to be reasonable.
29.  The Court awards the first applicant EUR 6,250 and the second applicant the amount claimed in respect of non‑pecuniary damage, plus any tax that may be chargeable.
30.  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 complains concerning the poor conditions of detention and the absence of an effective remedy admissible and the remainder of the applications inadmissible;

3.  Holds that there has been a violation of Article 3 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 3;

5.  Holds
(a)  that the respondent State is to pay, within three months, the following amounts in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i)  Mr Lobkov EUR 6,250 (six thousand two hundred and fifty euros);
(ii)  Mr Rassolov EUR 1,245 (one thousand two hundred and forty‑five euros);
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 first applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President