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FIRST
SECTION
CASE OF Aleksandr
Leonidovich IVANOV v. RUSSIA
(Application
no. 33929/03)
JUDGMENT
STRASBOURG
23
September 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 Aleksandr Leonidovich Ivanov
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33929/03) 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 Aleksandr Leonidovich
Ivanov (“the applicant”), on 10 September 2003.
- The
applicant was represented by Ms T. Ivanova, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk and then by Mr A. Savenkov, the then
Representative and acting Representative of the Russian Federation at
the European Court of Human Rights respectively.
- On
7 January 2008 the President of the First Section decided to give
notice of the application to the Government. It was decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1 of the Convention).
- 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
- The
applicant was born in 1981 and is serving a prison term in the Ryazan
Region.
A. Criminal proceedings against the applicant
- The
applicant was a student of a State University, which trained law
enforcement officers. On 3 March 2001 the applicant was arrested on
suspicion of murder. By a judgment of 23 April 2002, the Omsk
Regional Court convicted the applicant of theft and murder, and
sentenced him to seventeen years’ imprisonment. On 10 April
2003 the Supreme Court of the Russian Federation upheld the judgment.
B. Conditions of detention in the remand centre
1. The applicant’s account
- From
5 to 13 March 2001 the applicant was detained in a temporary
detention centre in the town of Omsk. From 14 March 2001 to 10 June
2003 the applicant was detained in Omsk remand centre no. 55/1.
- According
to the applicant, he was kept in the remand centre in cell no. 163
(designed for eight persons) together with at least twenty other
inmates. Owing to an insufficient number of beds, they had to sleep
in shifts. The cell windows were covered with metal shutters that
barred access to natural light and air. In 2003 the applicant was
kept in the cell together with eight to ten other persons.
- The
applicant subsequently indicated that in 2001-02 he had been afforded
less than two square metres of living space in the cell. The toilet
was not separated from the living area. In the absence of any
ventilation, the smell spread into the cell. He also alleged that on
the days of court hearings in April 2001 he had to get up at 4 a.m.
and was taken back at 8 p.m. without any food or drink.
2. The Government’s account
- The applicant was kept in the remand centre from 15
March 2001 to 10 June 2003. The applicant was placed in cell no.
163, which measured twenty-one square metres and had five beds. This
cell was assigned to former law enforcement officers, who had to be
kept separately from the other (potentially hostile) detainees. With
reference to certificates issued in February 2008 by the acting
director of the remand centre, the Government stated that this cell
had accommodated three to five detainees during the relevant periods.
In support of the above, the Government enclosed statements made in
2008 by three officers serving in the remand centre, who confirmed
that the above information was correct and that the conditions of the
applicant’s detention during the relevant periods had been
appropriate. The Government also enclosed a statement made in 2008 by
a convict who had been detained in cell no. 163 from April to July
2001. This person stated that during that period there had been five
beds and only four detainees and that the material conditions had
been acceptable. A similar statement was made in 2008 by another
detainee who had been kept in that cell from December 2002 to
February 2003.
- From
30 August to 4 September 2002 the applicant was also kept in cell
no. 53, which measured 4.8 square metres and had one bed.
- According
to the Government, the applicant was provided with an individual bed
and bedding in both cells. He had access to a shower once a week. He
had daily outdoor walks. The metal shutters on the cell window(s)
were aimed at preventing inter-cell communication and did not impede
access to natural light. The works for removing the shutters were
carried out between November 2002 and March 2003.
- On
the days when investigative measures were carried out or hearings
were held (June 2001 – September 2002), the applicant had had
to get up 6 a.m. and was taken back to the cell before 10 p.m. On
those days, he had been fed and had also been able to take food
bought by him or received from next of kin.
- As can be seen from the certificate submitted by the
Government, the cell record cards for October 2000 – October
2002 were destroyed on 8 August 2004 after the expiry of the
one-year retention period. The registers concerning the population of
the remand centre between July 2001 and December 2003 were destroyed
on 30 August 2004 after the expiry of the one-year retention period.
- The following data is given on one of the certificates
submitted by the director of the remand centre. The “maximum
design capacity” of the remand centre was 1,025 detainees.
Between December 2002 and 2004 the design capacity went up to 1,515
detainees owing to the construction of new buildings. As can be seen
from another certificate, in 2001 the remand centre accommodated an
average of 2,685 persons (to 2,887 beds); in 2002 the figure was
1,999 persons (to 2,305 beds) and in 2003 there were 1,905 persons
(to 2,305 beds).
3. Complaints to national authorities
- The applicant complained to the prosecutor’s
office of the Omsk Region alleging that he had been ill-treated at
the temporary detention centre and that his state of health had
deteriorated while in detention. On 11 April 2001 the
prosecutor’s office rejected his complaints as unfounded. By a
letter of 18 December 2003, the prosecutor’s office
rejected the applicant’s further complaint concerning
conditions of detention and stated, in particular, that his state of
health had been satisfactory, except for a slight deterioration of
his eyesight.
- In February 2004 the applicant complained to the
Regional Department for the Execution of Sentences about the
allegedly degrading conditions of his detention, referring in
particular to the overpopulation in the remand centre and lack of
access to natural light and airflow in the cells. By a letter of
2 March 2004, the Penitentiary Office acknowledged the
overpopulation problem in “certain cells” in the remand
centre in 2001 and 2002 and stated that in 1999 the metal shutters
had been partly removed from the cell windows and had been completed
removed in March 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in Omsk
remand centre no. 55/1, where he had been detained from March
2001 to June 2003, had been in breach of Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government considered that only the period of detention from 10 March
to 10 June 2003 fell within the scope of the six-month rule under
Article 35 § 1 of the Convention. They also submitted that the
applicant, who was at the time assisted by a lawyer, should have
exhausted domestic remedies by lodging a complaint before a
prosecutor’s office or a civil action for compensation in
respect of pecuniary and/or non-pecuniary damage caused by the
conditions of detention.
- The
applicant made no specific comment.
- As
to the exhaustion of domestic remedies, the Court first observes that
the applicant did raise his grievance about the conditions of
detention before various national authorities (see paragraphs 16 and
17 above). As to a complaint to a prosecutor’s office or an
eventual civil action for damages, the Court has already examined the
same argument by the Russian Government and dismissed it in a number
of cases (see, among others, Benediktov v. Russia, no. 106/02,
§ 30, 10 May 2007, and Matyush v. Russia, no.
14850/03, § 47, 9 December 2008). Nothing in the Government’s
submissions in the present case persuades the Court to depart from
that finding. It therefore concludes that this complaint cannot be
rejected for failure to exhaust domestic remedies.
- Moreover,
given that the applicant was kept in the remand centre from March
2001 to June 2003, he should be considered as having complied with
the six-month rule by lodging on 10 September 2003 a complaint before
the Court about conditions of detention there.
- The
Court concludes 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 argued that the applicant had failed to provide any prima
facie evidence, for instance statements from cellmates in support of
his allegations of appalling conditions of detention, in particular
on account of the alleged overcrowding problem. The applicant had
been detained most of the time in a cell assigned to former law
enforcement officers. The admission made by the Penitentiary Office
did not specifically concern the cell(s) in which he had been
detained (see paragraph 17 above). For their part, the Government had
substantiated their refutation of the above allegations with
reference to statements made by public officials issued in the domain
of their competence and being aware of criminal liability for forgery
of official documents (see paragraphs 10 - 14 above). There was no
legitimate reason to doubt their authenticity or credibility. The
Government also explained that the relevant logbooks or registers of
the remand centre had already been destroyed owing to the expiry of
their retention period(s).
- The
applicant maintained his complaint.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that for treatment to be regarded as degrading or
inhuman for the purposes of Article 3 of the Convention it must
attain a minimum level of severity (see Price v. the United
Kingdom, no. 33394/96, § 24, ECHR 2001-VII). When
assessing conditions of detention, account has to be taken of the
cumulative effects of those conditions, as well as the specific
allegations made by the applicant. This being so, the Court cannot
decide, once and for all, how much personal space should be allocated
to a detainee in terms of the Convention (see Trepashkin v.
Russia, no. 36898/03, § 92, 19 July 2007).
- The Court further reiterates that allegations of
ill-treatment must be supported by appropriate evidence. In assessing
evidence, the Court has generally applied the standard of proof
“beyond reasonable doubt” (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25). However,
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact. Convention proceedings, such as those arising from the
present application, do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation), as in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting allegations. Failure on a
Government’s part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant’s allegations (see
Ahmet Özkan and Others v. Turkey, no. 21689/93, §
426, 6 April 2004).
(b) Application of the principles in the
present case
- The
Court observes that the applicant did not maintain any particular
allegations concerning cell no. 53. As to cell no. 163,
apparently assigned at the time to former law enforcement officers,
the Court observes that the parties are in disagreement as to the
conditions of detention, but not regarding the cell size (twenty-one
square metres).
- It
can be seen from the Government’s submissions that the
applicant was afforded no less than four square metres of the cell
space, given that the cell population never exceeded five persons.
The applicant, however, insisted that the cell population, especially
in 2001 and 2002, had varied between eight and twenty persons, so
that he had normally not been afforded more than two square metres of
cell space.
- The
Court first reiterates that the national authorities acknowledged
that some unspecified cells in 2001 and 2002 were overpopulated by
national standards (see paragraph 17 above). The applicant relied on
the above information when he raised the related complaint before
this Court.
- The
Court further notes that, in their turn, the Government submitted
that the primary evidence concerning the number of inmates in the
cells had been destroyed owing to the expiry of the retention period
(see paragraph 14 above). While it has not been alleged that the
relevant registers were destroyed in breach of the time limits set in
the national legislation, it was not explained why the register
concerning the year 2003 had been destroyed already in August 2004
(see paragraph 14 above).
- Furthermore,
in their plea concerning the number of detainees, the Government
relied on statements by the facility’s acting director
indicating the number of the applicant’s fellow inmates. While
accepting that the facility’s registers had been destroyed, the
Court considers it extraordinary that years after the applicant’s
detention in that facility had come to an end, the prison staff were
able to recollect the exact number of inmates that had been detained
there with the applicant. In view of the above, the prison staff’s
certificates are therefore of little evidential value for the Court
(see, for a similar approach, Vlasov v. Russia, no. 78146/01,
§ 93, 12 June 2008, and Kokoshkina v. Russia, no.
2052/08, § 60, 28 May 2009).
- At
the same time, it cannot be overlooked that despite the
unavailability of the relevant registers the Government were able in
2008 to identify the applicant’s co-inmates at the time and to
produce their written statements in support of the Government’s
position concerning the conditions of detention in 2001-2003. Those
persons stated that the conditions of detention had been acceptable
and that there had been no problem of limited living space in the
cell or any shortage of individual beds.
- The
applicant made no specific comment on the authenticity and
reliability of those statements. It is also noted that there is no
indication that, during the relevant period of detention or later,
the applicant, who was assisted by a lawyer, sought to obtain any
witness statements in support of his allegations of unsatisfactory
conditions of detention. However, making a global assessment of all
the available information, in particular that referred to in
paragraph 15 above, the Court cannot overlook that in 2004 the
national authorities acknowledged the existence of the overpopulation
problem in the remand centre during 2001 and 2002 (see also Matyush,
cited above, §§ 51-59, concerning the same detention
facility during the relevant periods). Various certificates and
reports supplied by the Government furnish contradictory information
as to whether or not the actual population of the remand centre
exceeded its design capacity by national standards or the number of
beds (see paragraph 15 above). Thus, as the Government have not
adduced appropriate and conclusive evidence, the Court considers that
the applicant was affected by the general overpopulation problem in
the remand centre.
- In
view of the foregoing assessment, having regard to the applicant’s
allegations, the Court finds that during the major part of his
detention in the remand centre he was afforded at times less than two
square metres of cell space. In addition, while there is insufficient
evidence that the deterioration of his eyesight was due to the
conditions of detention, the Court accepts that the applicant endured
certain inconveniences owing to the presence of metal shutters on the
window(s) of the cell.
- The
Court reiterates that in a number of cases the lack of personal space
afforded to detainees in Russian remand centres was so extreme as to
justify, in itself, a finding of a violation of Article 3 of the
Convention. In those cases applicants were usually afforded less than
three square metres of personal space (see, for example, Lind v.
Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev
v. Russia, no. 37213/02, §§ 50-51, 21 June 2007;
Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March
2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005;
and Mayzit v. Russia, no. 63378/00, § 40, 20 January
2005).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the conditions of the applicant’s detention
between March 2001 and June 2003 amounted to inhuman and degrading
treatment. There has accordingly been a violation of Article 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 3 of the Convention that he
had been detained in the temporary detention centre with persons who
were hostile to law enforcement officers and that he had been beaten
up by police officers or interrogators. He complained that he had had
to study the case file over three days without rest or food, in the
presence of the investigator and convoy officers. He alleged that the
length of the criminal proceedings and his pre-trial detention had
been in breach of Article 3. The applicant also complained under
Article 5 of the Convention about his detention until in April 2002.
Lastly, he complained mainly under Article 6 of the Convention of a
number of alleged irregularities, which, in his view, had made his
trial unfair.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Referring
to the unfairness of his trial, the applicant claimed 10,000 euros
(EUR) for each month of his detention since 5 March 2001 and
EUR 300,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court first observes that the majority of the applicant’s
complaint has been declared inadmissible. It also observes that,
besides being unsubstantiated, the first claim is not related to the
violation found under Article 3 of the Convention. Having regard to
the nature of the violation found and making its assessment on an
equitable basis, the Court awards the applicant EUR 9,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable to the
applicant.
B. Costs and expenses
- The
applicant claimed reimbursement of unspecified lawyers’ fees
and translation costs.
- The
Government contested the claims.
- 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. The applicant has not provided any
documentary proof in support of his claims. The Court rejects them as
unsubstantiated.
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 complaint concerning conditions of
detention in Omsk remand centre no. 55/1 from March 2001 to June
2003 admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 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 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
