BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SKOROBOGATYKH v. RUSSIA
(Application
no. 4871/03)
JUDGMENT
STRASBOURG
22 December
2009
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 Skorobogatykh v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4871/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey Dmitriyevich
Skorobogatykh (“the applicant”), on 15 November 2003.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Preobrazhenskaya and Ms K. Moskalenko, lawyers practising in Moscow.
The Russian Government (“the Government”) were
represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been detained in
inhuman and degrading conditions and that the courts at two levels of
jurisdiction had refused to secure his participation in the civil
proceedings concerning his claims for compensation for damage
resulting from detention in such conditions.
- On
19 January 2007 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and is serving a prison sentence in
Kaliningrad Region.
A. Conditions of detention
- On
16 March 1998 the applicant was arrested on suspicion of possession
of illegal drugs. From 16 March to 30 December 1998 he was
detained in remand prison no. IZ-39/1 in Kaliningrad pending
investigation and trial.
1. Number of inmates per cell
- Pursuant
to the certificate issued by the remand prison administration on
16 March 2007 and produced by the Government, the applicant was
detained in four cells. From 16 March to 24 April 1998 he
was held in cell no. 29, which measured 7.7 square metres. From
24 April to 15 June 1998 he was placed in cell no. 145,
which measured 7.9 square metres. From 15 June to 26 August
1998 he was kept in cell no. 8, which measured 7.8 square
metres. Lastly, from 26 August to 29 December 1998 he was
held in cell no. 4/19, which measured 14 square metres. According to
the Government, the information on the numbers of inmates detained in
the same cells as the applicant was not available as the documents
had been destroyed. The Government, relying on the same certificate,
further submitted that at all times the applicant had had an
individual bed and bedding.
- The
applicant did not dispute the cell measurements and the period of
detention there. He submitted that the cells in the remand prison
were always overcrowded. The number of bunk beds in the cells was
insufficient and the inmates had to take turns to sleep. There were
six beds in cell no. 29, while there were twelve inmates held
there. In cell no. 145 there were ten or eleven inmates who had
to share four beds. No bedding was provided for him and all the time
he had been detained in cell no. 29 he had had to sleep just on
the metal mesh of the bunk bed. Then his relatives sent him a
mattress, a blanket, a pillow, sheets and a pillow case.
2. Sanitary and hygienic conditions
- Relying
on the certificates issued by the management of the remand prison on
16 and 27 March 2007, the Government provided the following
description of the cells where the applicant had been detained. The
windows had glass panes and were provided with air vents which could
be kept open. Each cell was equipped with mechanical and exhaust
ventilation. When the inmates went out for exercise the door vents in
the cells were kept open too, to allow for additional air
circulation. The central heating ensured an adequate temperature of
180C. The lights in the cells were constantly on, which
permitted permanent supervision of the inmates detained in the cells
and the prevention of altercations between them, and against other
contingencies too. Between 6 a.m. and 10 p.m. the cells were lit with
two 100-watt bulbs, ensuring sufficient brightness in the cells.
During the night the lighting used was of a lower intensity. Cleaning
and disinfection were carried out on a regular basis, at least once a
month. Rodent and insect extermination was carried out on a weekly
basis. Should lice, bed bugs, cockroaches, etc. be detected in the
cells, additional prompt disinfection was conducted too. The cells
were equipped with a centralised cold and hot water supply and a
sewage system. The remand prison did not limit or restrict water use
by the detainees in any way. The toilet was separated from the living
area of the cell by a wall one metre in height and functioned
properly.
- The
applicant rejected the description of the conditions of his detention
as submitted by the Government. As regards the certificates provided
by the Government, he considered them to be an unreliable source of
information given that they had been prepared almost nine years after
he was detained at the remand prison in question. According to the
applicant, the windows in the cells were covered with metal shutters
which prevented the access of fresh air. The shutters were removed
only in 2003 pending the visit of the European Committee for the
Prevention of Torture. The cells were infested with cockroaches, bed
bugs, lice and other insects. They were never sanitised. The inmates
had at their disposal only disinfectants received from their
relatives. The food was of poor quality. It was distributed by
inmates dressed in dirty clothes. It could be seen that their hands
and fingernails were dirty too. The laundry service was always closed
and the inmates had to wash and dry their bed sheets in the cells.
The toilet was separated from the living area of the cell only in
cell no. 4/19. In other cells the inmates had to hang up a
curtain made of an old bed sheet to partition off the toilet area. In
cells nos. 29 and 145 the toilets were broken and leaked
constantly. In cell no. 8 the toilet installed had been
manufactured in Germany before the Second World War. The furniture in
the cells was scarce and broken. There was practically no hot water
supply. The light was very bright and was never switched off. Because
of the lack of any ventilation in the cells it was stiflingly hot in
summer. The applicant further alleged that as a result of detention
in such conditions he had developed skin diseases such as psoriasis
and eczema. He also suffered from a psychological disorder and
depression.
3. Availability of showers and daily walks
- According
to the applicant, his daily walk lasted no longer than an hour. It
took place in a small yard measuring seven square metres. Due to the
high number of inmates taken into the yard it was practically
impossible to move around. There were no benches in the yard either.
Everyone just had to stand still.
- The
applicant further submitted that between 16 March and 24 April
1998 the administration had introduced a quarantine regime in the
cell after one of the inmates had fallen ill with hepatitis. During
that period the inmates were not allowed to use the shower
facilities. After the quarantine was over, the applicant could take a
shower only on very rare occasions, that is no more often than once
in twelve, fifteen or twenty days. At all times the shower rooms were
overcrowded and the water was either too cold or too hot to allow
adequate washing.
- The
Government denied that an inmate suffering from hepatitis had been
detained in any of the same cells as the applicant. Nor had there
been any restrictions on the use of the shower facilities.
B. Proceedings for compensation
- On
23 January 2003 the applicant, who was at that time serving a prison
sentence, sued the Ministry of Finance of Russia and remand prison
no. IZ-39/1 for compensation for damage resulting from his pre-trial
detention in appalling conditions and lack of medical assistance. The
applicant claimed an award for non-pecuniary damage in the amount of
99,000 Russian roubles (RUB). He also sought leave to appear before
the court and asked for a lawyer to be appointed to represent him.
- On
an unspecified date the Tsentralniy District Court of the Kaliningrad
Region informed the applicant that the applicable laws did not
provide for the attendance of persons serving a prison sentence at a
hearing concerning the determination of their civil rights and
obligations. The court further advised the applicant of his right to
submit observations in writing and/or to appoint a representative and
communicated to him the date and time of the court hearing.
- On
22 April 2003 the District Court heard the case in the applicant's
absence. The respondent parties were present. They made oral
submissions to the court and presented written evidence. The court
dismissed the applicant's claims in full. Firstly, the court accepted
that the applicant had been detained in overcrowded cells pending
investigation and trial. After reviewing the applicant's medical file
the court found that the applicant had received necessary medical
assistance. The court examined the documents provided by the
respondents to substantiate their argument that conditions of the
applicant's detention had been in conformity with applicable
standards, and dismissed the remainder of the applicant's allegations
as unsubstantiated. Lastly, the court noted that Articles 1069
and 1070 of the Russian Civil Code were not applicable to his
case, given that he had been detained lawfully.
- On
24 September 2003 the Kaliningrad Regional Court considered the
applicant's appeal against the judgment of 22 April 2003 in his
absence. In sum, the appeal court noted that the overcrowding of the
remand prison had been due to objective reasons and could not give
rise to the respondent parties' civil liability, even though the
latter conceded that the remand prison had been overcrowded. The
court upheld the said judgment noting that (1) it had not been
incumbent on the lower court to provide the applicant with free legal
assistance and (2) the applicant had been duly notified of the date
and time of the court hearing and had had ample opportunity to retain
a representative to plead the case on his behalf.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
- Detainees
should be provided with food free of charge and sufficient to
maintain them in good health according to standards established by
the Government of the Russian Federation (Section 22 of the Detention
of Suspects Act in force as of 15 July 1995 (“the Act”)).
The conditions of their detention should satisfy sanitary and
hygienic requirements. They should be provided with an individual
sleeping place, bedding, tableware and toiletries. Each inmate should
have no less than four square metres of personal space in his or her
cell (Section 23 of the Act).
B. Compensation for damages
- The damage caused to the person or his or her property
shall be compensated in full by the tortfeasor (Article 1064 § 1
of the Civil Code of the Russian Federation (“the CC”)).
A State agency or a State official shall be liable for damage caused
by their unlawful actions or failure to act (Article 1069 of the CC).
Such damage is to be compensated at the expense of the federal or
regional treasury.
C. Presence in court
- Parties to civil proceedings may appear before a court
in person or act through a representative (Article 48 of the Code of
Civil Procedure in force as of 1 February 2003 (“the
CCP”)). A court may appoint an advocate to represent a
defendant whose place of residence is not known (Article 50 of the
CCP). Free legal assistance may be provided to indigent plaintiffs in
civil disputes concerning alimony or pension payments or claims for
health damage (section 26 § 1 of the Advocates Act in force as
of 31 May 2002).
- Convicted persons may be transferred from a
correctional colony to an investigative unit if their participation
is required as witnesses, victims or suspects in connection with
certain investigative measures (Article 77.1 of the Code of
Corrections in force as of 8 January 1997). The possibility for
a convicted person to take part in civil proceedings, whether as a
plaintiff or defendant is not provided for.
- On several occasions the Constitutional Court has
examined complaints by convicted persons whose requests for leave to
appear in civil proceedings had been refused by courts. It has
consistently declared the complaints inadmissible, finding that the
contested provisions of the CCP and the Code of Corrections did not,
as such, restrict the convicted person's access to court. It has
emphasised, nonetheless, that the convicted person should be able to
make submissions to the civil court, either through a representative
or in any other way provided by law. If necessary, the court may hold
the hearing at the location where the convicted person is serving the
sentence or may ask the court having territorial jurisdiction over
the correctional colony to obtain the applicant's submissions or
carry out any other procedural actions (decisions no. 478-O of 16
October 2003,
no. 335-O of 14 October 2004, and no. 94-O of 21
February 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been detained in appalling
conditions from 16 March to 30 December 1998 in remand
prison no. IZ-39/1 in Kaliningrad in contravention 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
1. The parties' submissions
- The
applicant submitted that he had tried to obtain redress for the
violation of his rights set out in Article 3 of the Convention by
bringing an action against State authorities to recover damages for
inhuman conditions of his detention. However, it was to no avail.
- The
Government conceded that the applicant had resorted to one of the
domestic remedies available in respect of his grievances. However, in
their opinion, he had applied to domestic courts only four years
after his detention ended and the civil proceedings instituted by the
applicant should not be taken into account for the purposes of the
six-month rule. They submitted that the period of six months for the
introduction of the complaint should be calculated from 30 December
1998, which was when the applicant's detention ended. Therefore, the
applicant had introduced his complaint out of time and it should be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
2. The Court's assessment
(a) The Court's competence to examine the
complaint
- The
Court notes from the outset that the applicant complained about the
conditions of his detention between 16 March and 30 December
1998. However, it will examine the complaint only in respect of the
period which falls within its competence ratione temporis,
that is after the Convention entered into force in respect of Russia
on 5 May 1998.
(b) Whether the applicant complied with
the six-month rule
- In
view of the Government's argument that the applicant introduced his
complaint about the conditions of detention more than four years
after his detention ended and his application to the domestic courts
should not be taken into account for the purposes of the six-month
rule, the Court must ascertain from what date the six-month period
should be calculated in the present case.
- Normally,
the six-month period runs from the final decision in the process of
exhaustion of domestic remedies. However, in the absence of domestic
remedies the six-month period runs from the date of the acts or
measures complained of. Special considerations could apply in
exceptional cases, where an applicant first avails himself of a
remedy and only at a later stage becomes aware, or should have become
aware, of circumstances which render the remedy ineffective. In such
a case the Court considers that it may be appropriate for the
purposes of Article 35 § 1 to take the start of the six-month
period from the date when the applicant first became or ought to have
become aware of those circumstances (see, among other authorities,
Laçin v. Turkey, no. 23654/94, Commission decision of
15 May 1995).
- Accordingly,
the Court's task in the present case is twofold. Firstly, the Court
has to decide whether the applicant's action for damages could be
considered an effective remedy in respect of the alleged violation of
his rights. Then, if the Court finds that that action fell short of
providing the applicant with adequate and sufficient redress, it has
to see whether the latter could still be considered to have complied
with the six-month rule.
- The Court observes that it has previously found on
numerous occasions that an application to a court with a view of
obtaining redress for allegedly inhuman and degrading conditions of
detention cannot be regarded as an effective domestic remedy (see,
for example, Aleksandr
Makarov v. Russia,
no. 15217/07, §§ 76-91, 12 March 2009).
Having regard to the materials submitted by the
Government, the Court notes that they have not put forward any fact
or argument capable of persuading it to reach a different conclusion
in the present case. Even though the domestic courts accepted and
considered the applicant's claims at two levels of jurisdiction, this
fact alone is not sufficient to consider the judicial avenue pursued
by the applicant to be an effective remedy. While recognising the
truthfulness of the applicant's allegations concerning the
overcrowding of the cells where he had been detained, the courts
nevertheless dismissed his claims for damages, finding no
unlawfulness in the authorities' failure to comply with applicable
domestic standards concerning conditions of detention.
- The Court finds that the way the domestic courts
interpreted and applied the relevant provisions of the Russian Civil
Code deprived the applicant's action for damages lodged against State
authorities of any prospect of success. Therefore, it could not be
considered an effective remedy in respect of the alleged violation.
In such circumstances, it remains for the Court to ascertain from
what moment the applicant became aware, or should reasonably have
become aware, of this situation, in order to decide whether he
complied with the six-month rule.
- Turning
to the facts of the present case, the Court discerns nothing in the
parties' submissions to suggest that during the four years after the
applicant's pre-trial detention ended in December 1998, he was aware,
or should have become aware, of the futility of his action for
damages arising from the conditions of his detention. During the
whole of that period the applicant remained incarcerated, serving a
prison sentence without readily available access to legal advice. The
Court considers it reasonable that the applicant, even though he did
not do so promptly, tried first to obtain redress in respect of the
violation of his rights at the domestic level and only after his
action was dismissed in the final instance by the Kaliningrad
Regional Court on 24 September 2003 did he bring the complaint
to the Court's attention, on 15 November 2003 (see, by contrast,
Laçin, cited above, where the Commission considered the
applicant's complaint to have been introduced out of time, since he
made use of the domestic remedy of whose ineffectiveness he had
earlier been advised by the lawyer assisting him with the application
to the Commission).
- Having
regard to the above, the Court concludes that, by introducing the
complaint about conditions of his detention on 15 November 2003,
the applicant complied with the six-month rule, and the complaint
cannot be rejected pursuant to Article 35 § 4 of the Convention.
The Court further notes that this is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties' submissions
- The
Government claimed that the conditions of the applicant's detention
in the remand prison were satisfactory and in compliance with
applicable domestic norms and standards. They based their submissions
on the certificates issued by the administration of the remand prison
on 16 and 27 March 2007, noting that the original official
records had been destroyed in March 2005 after the statutory period
for their storage had expired.
- The
applicant maintained his complaint. He noted that the conditions of
detention at remand prison no. IZ-39/1 in Kaliningrad were the
subject of many applications pending before Court.
2. The Court's assessment
- The
Court reiterates that Article 3 enshrines one of the fundamental
values of democratic society. The Convention prohibits in absolute
terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances or the victim's behaviour (see,
among other authorities, Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must in any event go beyond the inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment. Although measures depriving a person of liberty may often
involve such an element, in accordance with Article 3 of the
Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła v. Poland
[GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
- Turning
to the facts of the instant case, the Court notes that the parties
disagreed as to most aspects of the conditions of the applicant's
detention. However, there is no need for the Court to establish the
veracity of each and every allegation, because it can find a
violation of Article 3 on the basis of the facts presented to it
by the applicant, which the respondent Government did not dispute
(see Grigoryevskikh v. Russia,
no. 22/03, § 55, 9 April 2009).
- In
particular, the Court observes that the parties were in agreement as
far as the area of cells where the applicant was detained was
concerned. The Court further notes that the Government's submissions
were silent as to the applicant's argument about overcrowding of the
cells where he had been detained. They merely noted that the relevant
official records had been destroyed after the time-limit for their
storage had expired. Nor did they provide any comment as to the
domestic courts' finding that the applicant had indeed been detained
in overcrowded cells.
- The
Court accepts that the Government have duly accounted for their
failure to provide the relevant official documents. Nevertheless, the
Court agrees with the applicant, the truthfulness of whose
allegations had been in fact established by the domestic courts, that
the cells in the remand prison where he was detained were constantly
overcrowded. At times, the space the cells afforded did not exceed
0.78 sq. m per person. Besides, the number of beds was
insufficient and the applicant had to take turns with other inmates
to sleep. Given that the applicant was allowed no more than an hour's
exercise per day, he remained confined in such conditions practically
all day for a period of approximately eight months.
- The
Court reiterates that irrespective of the reasons for the
overcrowding, it is incumbent on the respondent Government to
organise their custodial 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, and Benediktov v. Russia, no. 106/02,
§ 37, 10 May 2007).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees (see,
among other authorities, Kalashnikov v. Russia, no. 47095/99,
§§ 97 et seq., ECHR 2002 VI; Khudoyorov v. Russia,
no. 6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v.
Russia, no. 62208/00, §§ 44 et seq., 16 June 2005;
Mayzit v. Russia, no. 63378/00, §§ 39 et seq.,
20 January 2005; and Novoselov v. Russia, no. 66460/01,
§§ 41 et seq., 2 June 2005).
- Having
regard to its case-law on the subject and the materials in its
possession, 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 there is no indication in
the present case that there was an intention on the part of the
authorities to humiliate or debase the applicant, the Court finds
that the fact he was obliged to live, sleep and use the facilities in
the same cells as so many other inmates for almost eight months in
severely crowded conditions, was itself sufficient to cause distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention, and to arouse in him feelings of
fear, anguish and inferiority capable of humiliating and debasing
him.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant's detention in remand
prison no. IZ-39/1 in Kaliningrad between 5 May and
30 December 1998, which it considers to have been inhuman and
degrading within the meaning of this provision.
- In
view of the above finding, the Court does not consider it necessary
to examine the remainder of the parties' submissions concerning the
sanitary and hygienic conditions of the cells where the applicant was
detained.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN
RESPECT OF THE CONDITIONS OF THE APPLICANT'S DETENTION
- The
applicant complained that no effective domestic remedies had been
available to him in respect of the violation of his rights set out in
Article 3 of the Convention. He relied on Article 13 of the
Convention, which 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 notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
Government pointed out that the applicant had had preventive and
compensatory effective domestic remedies at his disposal. In support
of their argument, they provided copies of judicial decisions taken
in response to the complaints and claims lodged by inmates against
the remand prisons where they were detained. In particular, they
presented a copy of the final judgment of 26 April 1999 whereby
Mr P. was awarded RUB 1,000 in non-pecuniary damages for having
been detained in overcrowded cells at remand prison no. IZ-35/1
in the Kaliningrad Region. They also submitted a copy of the final
judgment of 16 April 2003, whereby Mr Z. was awarded RUB 7,000
in non-pecuniary damages for lack of adequate medical assistance in
detention. In the Government's opinion, it had been open to the
applicant, during the period of his detention, to bring his
grievances to the attention of the administration of the remand
prison or a prosecutor. Alternatively, he could have challenged the
lawfulness of the alleged failure of the remand prison administration
to ensure adequate conditions of his detention. The applicant,
however, did not make use of those remedies. Instead, he chose to
pursue a different avenue by bringing an action for damages against
State authorities after his detention in the remand prison had ended.
Domestic courts had thoroughly examined his complaints and had taken
lawful and reasoned decisions. Accordingly, there was no violation of
the applicant's rights under Article 13 of the Convention.
- The
applicant maintained his complaint. He submitted that his action for
damages incurred through detention in appalling conditions had been
to no avail. As regards the copies of judicial acts submitted by the
Government, he considered them to be an exception rather than a rule.
In any event, in his opinion, the compensation awarded to plaintiffs
in those cases was so insignificant that it could not have been
regarded as adequate redress for the violation of their rights.
2. The Court's assessment
- The
Court points out that Article 13 of the Convention guarantees
the availability at national level of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might 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, among many other
authorities, Kudła, cited above, § 157). 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.
- Turning
to the facts of the present case, the Court firstly notes that it has
already examined the Government's argument with regard to the action
for damages lodged by the applicant in respect of the conditions of
his detention in the remand prison, finding that it could not be
considered an adequate and effective remedy (see paragraphs 31 and 32
above).
- As
regards the Government's contention that the applicant could have
brought his grievances to the attention of the prison's
administration or a prosecutor or complain to the court of the
alleged failure by the prison administration to comply with
applicable laws, the Court reiterates that it has already found a
violation of Article 13 in a number of cases against Russia on
account of the ineffectiveness of the said remedies (see, for
example, Benediktov v. Russia, no. 106/02, § 29,
10 May 2007).
- Having regard to its case-law on the subject and the
materials in its possession, 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.
- Accordingly,
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 to complain about the conditions of his detention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been refused the opportunity to
participate in the civil proceedings. He relied on Article 6 § 1
of the Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that this 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.
B. Merits
1. The parties' submissions
- The
Government submitted that, as a matter of law, the applicant, who had
been serving a prison sentence at the time, did not have the right to
be personally present at the court hearing concerning determination
of his civil rights and obligations or to be entitled to free legal
assistance. Nor did the interests of justice require that he be
provided with legal aid. Accordingly, the domestic courts' decision
to hear the case in the applicant's absence had been in compliance
with applicable domestic laws. The courts had duly advised the
applicant of the date and time of the court hearings and of his
procedural rights, including the rights to appoint a representative
to plead the case on his behalf and to ask the court to procure
evidence. The applicant, however, had chosen not to avail himself of
them. The courts had thoroughly examined the applicant's claims and
the submissions made by the respondent parties in accordance with the
rules of civil procedure. In the Government's opinion, the fact that
the applicant had not been present in court was not decisive for the
outcome of the proceedings. Nor had the principle of the equality of
arms been infringed.
- The
applicant maintained his complaint. In his view, it was essential for
compliance with the principle of the equality of arms that he
attended the hearing. The domestic judicial authorities' failure to
ensure his presence in court had deprived him of the opportunity to
make effective use of his procedural rights. He had been unable to
produce and examine evidence, to lodge requests and to argue his
case. He did not have the financial means to retain a lawyer to
represent him. In any event, the nature of his claims was such that
his personal presence was indispensable for proper examination of his
claims.
2. The Court's assessment
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his or her case
under conditions that do not place him or her at a substantial
disadvantage vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274). The Court has
previously found a violation of the right to a “public and fair
hearing” in a case where a Russian court, after having refused
leave to appear to the imprisoned applicants, who had wished to make
oral submissions on their defamation claim, failed to consider other
legal possibilities for securing their effective participation in the
proceedings (see Khuzhin and Others v. Russia, no. 13470/02,
§§ 53 et seq., 23 October 2008). It also found a
violation of Article 6 in a case where an imprisoned applicant was
similarly unable to be present and testify in court with regard to
his claim that he had been ill-treated by the police. Despite the
fact that the applicant in that case was represented by his wife, the
Court considered it relevant that his claim had been largely based on
his personal experience and that his submissions would therefore have
been “an important part of the plaintiff's presentation of the
case and virtually the only way to ensure adversarial proceedings”
(see Kovalev v. Russia, no. 78145/01, § 37,
10 May 2007).
- The
Court further observes that Article 6 of the Convention does not
guarantee the right to personal presence before a civil court but
rather a more general right to present one's case effectively before
the court and to enjoy equality of arms with the opposing side.
Article 6 § 1 leaves to the State a free choice of the means to
be used in guaranteeing litigants these rights (see Steel and
Morris v. the United Kingdom, no. 68416/01, §§
59-60, ECHR 2005-II).
- The
Court notes that the Russian Code of Civil Procedure provides for the
plaintiff's right to appear in person before a civil court hearing
his claim (see paragraph 21 above). However, neither the Code of
Civil Procedure nor the Code of Corrections make special provision
for the exercise of that right by individuals who are in custody,
whether they are in pre-trial detention or are serving a sentence. In
the present case the applicant's requests for leave to appear were
denied precisely on the ground that the domestic law did not make
provision for convicted persons to be brought from correctional
institutions to the place where their civil claim was being heard.
- The
issue of the exercise of procedural rights by detainees in civil
proceedings has been examined on several occasions by the Russian
Constitutional Court, which has identified several ways in which
their rights can be secured (see paragraph 23 above). It has
consistently emphasised representation as an appropriate solution in
cases where a party cannot appear in person before a civil court.
Given the obvious difficulties involved in transporting convicted
persons from one location to another, the Court can in principle
accept that in cases where the claim is not based on the plaintiff's
personal experiences, representation of the detainee by an advocate
would not be in breach of the principle of equality of arms.
- Turning
to the circumstances of the instant case, the Court accepts the
Government's argument that the domestic courts had acted in strict
compliance with applicable rules of civil procedure when considering
the applicant's action for damages. They duly advised him of his
rights, including the right to be represented (see, by contrast,
Khuzhin, cited above, §§ 106-09). Nevertheless,
in the circumstances the Court is not convinced that the
representative's appearance before the court could have secured the
effective, proper and satisfactory presentation of the applicant's
case.
- The
Court observes that the applicant's claims were, to a major extent,
based on his personal experience. The Court considers that his
testimony describing the conditions of his detention, of which only
the applicant himself had first-hand knowledge, would have
constituted an indispensable part of the plaintiff's presentation of
the case (see Kovalev, cited above, § 37). Only the
applicant could, by testifying in person, substantiate his claims and
answer the judges' questions, if any.
- The
Court also notes that the domestic courts refused the applicant leave
to appear, relying on the absence of a legal norm requiring his
presence. In this connection, the Court is also mindful of another
possibility which was open to the domestic courts as a way of
securing the applicant's participation in the proceedings. The
District Court could have held a session in the correctional
institution where the applicant was serving his sentence, as the
Constitutional Court indicated in its relevant decisions (see para.
23). However, the domestic courts did not consider such an option.
- In
these circumstances, the Court finds that the domestic courts, by
refusing to grant the applicant leave to appear and make oral
submissions at a hearing, deprived him of the opportunity to present
his case effectively.
- There
has therefore been a violation of Article 6 § 1
of the Convention on account of the applicant's absence before the
domestic courts in the civil proceedings in his case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 14 of the Convention that
he had been refused leave to appear before the courts considering his
civil claims on the sole ground of being a detainee.
- The
Court considers that the complaint is, in fact, a restatement of the
applicant's complaint under Article 6 § 1 of the
Convention and does not raise any separate issue. It follows that
this part of the application is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and must
be rejected pursuant to its Article 35 § 4.
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. Damage
- The
applicant claimed 10,000 euros (EUR) or 250,000 roubles (RUB) in
respect of non-pecuniary damage.
- The
Government considered the applicant's claims excessive and opined
that, should the Court find a violation of the applicant's rights,
the acknowledgment of a violation would constitute adequate just
satisfaction.
- The
Court observes that it found a combination of serious violations of
the applicant's rights in the present case. The applicant spent
almost eight months in inhuman and degrading conditions and had no
effective remedy in respect of his relevant complaint. Nor was he
able to present his civil case before the domestic courts. In these
circumstances, the Court considers that the applicant's suffering and
frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, it awards him
EUR 5,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed compensation, without specifying the amount
and asking for the Court's discretion, for the legal costs incurred
in the proceedings before the Court.
- The
Government considered that the applicant had not actually asked for
compensation of costs and expenses and no award should be made by the
Court.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case, the
amount of EUR 850 has already been paid to the applicant by way
of legal aid. In such circumstances, the Court does not consider it
necessary to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the inhuman
and degrading conditions of the applicant's detention at remand
prison no. IZ-39/1 in Kaliningrad, the absence of an effective
remedy in respect of his complaint about the conditions of his
detention and the domestic authorities' failure to ensure the
applicant's participation in the civil proceedings admissible and 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 from 5 May to 30 December 1998 at remand prison
no. IZ-39/1 in Kaliningrad;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- 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 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles 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 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
