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FIRST
SECTION
CASE OF NEDAYBORSHCH v. RUSSIA
(Application
no. 42255/04)
JUDGMENT
STRASBOURG
1 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nedayborshch v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42255/04) 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 Anatolyevich
Nedayborshch (“the applicant”), on 15 September 2004.
- The
applicant, who had been granted legal aid, was represented by Mr P.
Finogenov, a lawyer practising in Moscow. The Russian Government
(“the Government”) were initially represented by
Ms V. Milinchuk and Mr A. Savenkov, former
Representative and former acting Representative respectively of the
Russian Federation at the European Court of Human Rights, and
subsequently by their Representative, Mr G. Matyushkin.
- The
applicant alleged that he had been detained in inhuman and degrading
conditions in the temporary detention centre in the town of Kopeysk.
- On
28 February 2008 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 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1985 and is currently serving a prison sentence
in Kopeysk in the Chelyabinsk Region.
- On
5 December 2003 the applicant was taken into custody in connection
with criminal proceedings against him and placed in Chelyabinsk
remand prison no. IZ-74/1. On the same day he had a medical
examination including an X-ray of his lungs, which revealed no signs
of tuberculosis.
- On
various dates between 25 December 2003 and 5 August 2004 the
applicant was taken from the remand prison to the temporary detention
centre (IVS) located on the premises of the Kopeysk police
department. His stays in the centre lasted at least overnight and up
to four consecutive days. In total, he spent thirty-six days there.
- The
building in which the Kopeysk IVS was located had been constructed in
1935. Since it had been designed for short-term detention only, its
cells were not equipped with flush toilets or running water. Instead,
water tanks and water fountains were put at the inmates’
disposal. The toilet was located in the courtyard.
- The
applicant submitted that all ten cells of the Kopeysk IVS had been
overcrowded and had housed up to six persons. The one-hour outdoor
exercise was divided between ten cells, with the consequence that
each cell was only allowed some six minutes for outdoor exercise and
a visit to the toilet. The Government claimed that it was impossible
to establish the number of detainees because the documents had been
destroyed upon the expiry of the statutory storage period.
- The
cells were furnished with bunk beds but no mattresses or bed linen
were given to inmates. In the absence of dining tables, inmates had
to eat while sitting on the beds or on the floor.
- According
to the applicant, cells were infested with insects and small rodents.
The Government denied that allegation and submitted that the IVS had
regularly undergone disinfection and rat extermination.
- The
applicant complained to the prosecutor’s office about the
conditions of his detention.
- On 9 August 2004 the Kopeysk town prosecutor sent a
formal representation to the acting head of the Kopeysk IVS,
requiring him to remedy “most serious violations of the law and
of orders of the Ministry of the Interior” which had been
established by an inquiry instituted upon numerous complaints from
inmates held in the Kopeysk IVS. The representation read in
particular as follows:
“The conditions of detention in the Kopeysk IVS do
not meet hygienic and sanitary requirements. Each cell accommodates
on average six persons, which is in excess of the maximum population.
Sanitary and hygienic conditions in the Kopeysk IVS have
remained unsatisfactory:
cells
do not have running water, lavatory pans or sewerage;
lighting
in the cells is insufficient;
the IVS
does not have mattresses, bed linen or tables.”
- On
4 September 2004 the applicant underwent a medical examination in
prison hospital no. GLPU-17 and was diagnosed with tuberculosis.
- In
2005, the prosecutor’s office for the Chelyabinsk Region
launched a comprehensive review of the conditions of detention in the
IVS facilities of the Chelyabinsk Region. On 16 September 2005 the
regional prosecutor sent a formal representation to the head of the
regional Department of the Interior. He noted that the conditions of
detention in a large majority of regional IVS facilities were in
breach of the requirements of the Detention of Suspects Act (see
below). In the Kopeysk IVS, among others, the sanitary norm of no
less than four sq. metres of personal space per inmate was not
respected and detainees were not allowed to go outdoors for exercise.
- The
Government submitted that a new building of the Kopeysk IVS had been
constructed and would become operational in May 2008.
II. RELEVANT DOMESTIC LAW
- Section
23 of the Detention of Suspects Act (Federal Law no. 103 FZ
of 15 July 1995) provides that detainees should be kept in conditions
which satisfy sanitary and hygienic requirements. They should be
provided with an individual sleeping place and given bedding,
tableware and toiletries. Each inmate should have no less than four
square metres of personal space in his or her cell.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in the
Kopeysk IVS temporary detention centre were incompatible with 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 Government’s objection as to the
non-exhaustion of domestic remedies
- The
Government submitted that the applicant had not exhausted domestic
remedies because he had not applied to any domestic court with a
complaint that the conditions of his detention were inadequate. They
cited a newspaper publication about Mr D. who had been awarded 25,000
Russian roubles (RUB) against the Federal Service for Execution of
Sentences which had been responsible for his infection with scabies
in a remand prison. They also referred to the example of a Mr R., who
had been awarded RUB 30,000 for unlawful detention for fifty-six days
and lack of hot food for five days of his detention.
- The
applicant contended that Russian law did not have an established
practice of awarding compensation for non-pecuniary damage caused by
the overcrowding of detention facilities. The Civil Code did not
contain provisions which would have allowed Russian courts to
determine, by reference to any objective criteria, the extent of the
damage and make appropriate compensation.
- The
Court has already rejected the identical objection by the Russian
Government in case of Nazarov v. Russia (no.
13591/05, § 77, 26 November 2009). It 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 or failure to provide a detainee with food. Accordingly, the
Court dismisses the Government’s objection as to non-exhaustion
of domestic remedies.
2. The Government’s objection on non-compliance
with the six-month rule
- The
Government submitted that they should be answerable under the
Convention only for the conditions of the applicant’s detention
in the six months preceding the introduction of his application. If
it were otherwise, they would bear the unjustified burden of having
to keep the relevant documents for longer periods of time, especially
in cases involving a life sentence. Accordingly, they claimed that
the applicant’s complaint should be examined only in respect of
the period starting from 15 March 2004.
- The
applicant replied that the Government had failed to demonstrate how
an extension of the storage period would place an excessive burden on
the national authorities.
- In
the instant case the applicant’s detention in the Kopeysk IVS
was not continuous, as it alternated with periods of his detention in
the Chelyabinsk remand prison. The Court, however, reiterates that
even where detention was effected in different facilities, it may
examine the period of the detention as a whole, provided that the
nature of the applicant’s grievances relating to the conditions
of his detention has remained substantially the same throughout that
period (see Buzhinayev v. Russia,
no. 17679/03, § 23, 15 October 2009; Maltabar and
Maltabar v. Russia, no. 6954/02, §
83, 29 January 2009; Guliyev v. Russia, no.
24650/02, §§ 31 33, 19 June 2008; Benediktov
v. Russia, no. 106/02, § 31, 10 May 2007, and also Moiseyev
v. Russia, no. 62936/00, § 142, 9 October 2008). In cases
concerning the conditions of an applicant’s transport between
the remand prison and the courthouse, even though the applicant was
transported on specific days rather than continuously, the absence of
any marked change in the conditions of transport to which he had been
routinely subjected created, in the Court’s view, a “continuing
situation” which brought the entire period complained of within
the Court’s competence (see Vlasov v. Russia
(dec.), no. 78146/01, 14 February 2006, and Moiseyev v. Russia
(dec.), no. 62936/00, 9 December 2004).
- The applicant’s detention in the Kopeysk IVS was
not a continuous situation, but it occurred at regular intervals
throughout the entire duration of the criminal proceedings against
him. It does not appear that there was any material change in the
conditions of his detention in the Kopeysk IVS at any given moment in
that period. Since the allegation of severe overcrowding remained the
main characteristic of conditions with regard to all the cells of the
IVS, the Court does not consider that minor differences between the
cells, if they existed, would be sufficient to allow it to
distinguish between the conditions of the applicant’s detention
in different cells or for his detention to be separated into several
periods depending on the cell in which he had been kept (see, for
similar reasoning, Nazarov, § 78, and also Guliyev,
§§ 31-33, and Benediktov, § 31, all
cited above). The Court therefore dismisses the Government’s
objection on non-compliance with the six-month rule.
- Lastly,
the Court considers 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
- The
Government submitted that the applicant did not stay in the Kopeysk
IVS continuously, but rather for short periods of up to three days.
Furthermore, he was often taken out of the cell to take part in
investigations or to attend court hearings. The applicant had
sufficient personal space at this disposal and also had had the right
to one hour of outdoor exercise daily. Although the cells did not
have tables or bed linen, the conditions of the applicant’s
detention were generally compatible with Article 3 of the Convention.
- The
applicant indicated that his participation in investigations had been
limited to approximately ten minutes a day and that he had spent the
remainder of the time in the cell. The cells were severely
overcrowded, the water tank did not contain enough water for
everyone, and the outdoor exercise only lasted for a few minutes.
- Article 3,
as the Court has observed on many occasions, enshrines one of the
fundamental values of a 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 Balogh v. Hungary, no. 47940/99,
§ 44, 20 July 2004, and Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must, for a violation to be found, go beyond that inevitable element
of suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty
may often involve such an element. In accordance with Article 3 of
the Convention, the State must ensure that a person is detained in
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 on a number of aspects relating to the material 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).
- The
applicant claimed, and it was also confirmed during an official
inquiry by the region prosecutor’s office (see paragraph 13
above), that at the material time the cells of the Kopeysk IVS had
been overcrowded beyond their design capacity. The Government did not
dispute this allegation, referring to the fact that the official
records relating to the cell population had been destroyed after the
time-limit for their storage had expired. 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.
- The
parties also agreed upon the fact that there was no running water or
toilet in the cells and that the inmates had no table to eat off, or
mattresses to put on the bunk beds. Shower facilities were
non-existent and the outdoor exercise was of extremely limited
duration because of the excessive number of inmates. The absence of
such basic facilities as running water and a lavatory pan was
apparently the consequence of an outdated design project of the
Kopeysk IVS and the Court notes with satisfaction that it was taken
out of service. However, at the material time the applicant had to
endure conditions of detention which must have caused him
considerable mental and physical suffering, diminishing his human
dignity. In addition, the Court notes that the applicant appears to
have contracted tuberculosis during his detention. The conditions of
the applicant’s detention thus amounted to inhuman and
degrading treatment within the meaning of Article 3 of the
Convention, even in the absence of any positive intention to
humiliate or debase the applicant on the part of any domestic
authority.
- There
has accordingly been a violation of Article 3 of the Convention
on account of the inhuman and degrading conditions of the applicant’s
detention in the Kopeysk IVS.
II. 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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the applicant had failed to submit any
documents in support of his claim.
- The Court reiterates its constant position that an
applicant cannot be required to furnish any proof of non-pecuniary
damage he or she has sustained (see, among many others, Antipenkov
v. Russia, no. 33470/03, § 82,
15 October 2009; Pshenichnyy v. Russia, no. 30422/03, §
35, 14 February 2008; Garabayev v. Russia, no.
38411/02, § 113, ECHR 2007 VII (extracts); and Gridin
v. Russia, no. 4171/04, § 20, 1 June 2006).
It considers, however, the applicant’s claim excessive. Making
its assessment on an equitable basis, it awards the applicant EUR
9,000 under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant did not claim any costs or expenses. Accordingly, the Court
considers that there is no call to award him any sum 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 application admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the inhuman and degrading
conditions of the applicant’s detention in the Kopeysk IVS;
- 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 9,000 (nine
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
