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FIRST
SECTION
CASE OF
KOSITSYN v. RUSSIA
(Application
no. 69535/01)
JUDGMENT
STRASBOURG
12 May
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 Kositsyn v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 22 April 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 69535/01) 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 Yevgeniy Viktorovich
Kositsyn (“the applicant”), on 19 February 2001.
- The
applicant, who had been granted legal aid, was represented by Ms G.
V. Guseva, a lawyer practising in Kaliningrad. The Russian Government
(“the Government”) were represented by Mr P. Laptev, the
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant alleged, inter alia, that the conditions of his
detention in remand prison IZ-39/1 of Kaliningrad had been inhuman.
- By
a decision of 19 October 2006, the Court declared the application
partly admissible.
-
The Chamber decided after consulting the parties that no hearing on
the merits was required (Rule 59 § 3 in fine). The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in
Kaliningrad.
- On 17 October 1999 the police arrested the applicant on
suspicion of the murder of Ms M. On 20 October 1999 an investigating
officer charged the applicant and detained him in remand prison
IZ-39/1 in Kaliningrad. On 20 April 2000 the Central District
Court of Kaliningrad found the applicant guilty of the murder of Ms
M. The applicant was sentenced to fourteen years' imprisonment. On 22
August 2000 the Kaliningrad Regional Court upheld the conviction on
appeal.
1. The applicant's account of detention conditions in
the remand prison
- The
applicant was detained in remand prison IZ-39/1 from 20 October 1999
to 20 September 2000.
- On
his admission, he was put in a quarantine cell occupied by young
offenders, some of whom had already been convicted. This cell
measured
12-13 square metres and housed fourteen to sixteen
prisoners. Of the eight available bunk beds, only six had bedding.
The applicant was only able to sleep for three to four hours a day.
The window was covered with metal shutters that let through neither
light nor fresh air. The air inside was stuffy, the walls were damp.
A 60-watt ceiling light stayed on day and night: too dim to read by,
too bright to sleep under. The toilet had no flush or ventilation. It
stood above the floor exposed to onlookers. Several prisoners had
lice, tuberculosis or syphilis. The cell swarmed with cockroaches,
bed bugs, ants and rats. Cleaning of the toilet was limited to
sprinkling it with bleach.
- After
about a week, the prison administration moved the applicant to a cell
meant for former policemen. This cell was located in the basement and
measured seven square metres. It housed between eight and nineteen
prisoners, even though there were only six bunk beds. The prisoners
had to sleep in shifts of three to four hours a day. The window was
covered with a metal shutter in which there were 1 cm holes; too
small to let through either light or fresh air. There was no
ventilation. The walls had a thick, dirty, wet concrete coating. A
weak filament light stayed on day and night. In one corner of the
cell, there was a toilet – a concrete cube raised above the
floor. The toilet was not partitioned off from the cell, offered no
privacy, and lacked a flush. Above it, there was a service water tap
used for washing. The dining table stood one metre away from the
toilet. The cell swarmed with cockroaches, bed bugs and ants.
- In both cells, the applicant had to share bunk beds,
and had no bedding, or toiletries. A fifteen-minute shower was
available once every fortnight. Because the cells were constantly
overcrowded, and because many prisoners smoked, the applicant
remained immobile in the stuffy air for long periods of time. Relief
came from outside walks, but they were rare and short (thirty to
forty minutes a day), and the yard was also overcrowded (seven to
fourteen people in seven to eight square metres). There was no
drinking water in the cells. The food was cold, tasteless and
slovenly served. During his stay in the prison the applicant, who
usually weighed sixty kilograms, lost ten kilograms in weight.
- Along
with his own description, the applicant submitted three witness
statements by persons who had been detained in the prison at about
the same time as him. Mr A. K. was detained in the prison from
December 1998 to August 2000 and confirmed the applicant's
description of the prison. Mr M. T. was detained in the prison from
February 1996 to October 1999. He confirmed the applicant's
description of the prison and added that the bunk beds in the cells
were crudely made of sharp metal rods which caused injuries to the
prisoners. Mr Y. V. was detained in the prison from August 1999
to May 2000 and confirmed the applicant's description of the
prison.
2. The Government's account of detention conditions in
the remand prison
- During his detention in the prison the applicant, as a
former policeman, was detained in two cells for former policemen.
These cells measured 13.6 and 7.8 square metres. The prison
administration provided the applicant with a bunk bed, bedding, and
dishes. The cells were in a satisfactory sanitary condition, no
prisoners had lice, tuberculosis, or other infectious diseases. The
cells had central heating, running water, sewage, natural and
artificial light, natural ventilation, two-storey beds, toilets and
sinks. The average temperature in winter was 18oC, the
average amount of light was 75-100 lux. The prison administration
systematically disinfected the cells. Food met statutory
requirements.
II. RELEVANT DOMESTIC LAW
-
Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ
of 15 July 1995) provides that detainees should be given free food
sufficient to maintain them in good health according to standards
established by the Government of the Russian Federation. Section 23
provides that detainees should be kept in conditions which satisfy
the sanitary and hygiene 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, under Article 3 of the Convention, about the
conditions of his detention from 20 October 1999 to 20 September 2000
in remand prison IZ-39/1. Article 3 of the Convention reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
1. The parties' submissions
- The
Government informed the Court that they were unable to provide
information on the number of people detained together with the
applicant in the same cells because all the relevant records had been
destroyed after the expiry of the statutory time-limits for keeping
them. They admitted that the number of detainees in the remand prison
could have “exceeded the fixed rates”. Nevertheless, they
maintained that the applicant had been provided with an individual
sleeping place. The Government asserted that prison overcrowding is a
common problem for virtually all European countries. In the Russian
Federation, that situation is caused by objective reasons, such as
high criminality and limited capacity in detention facilities. Since
2000 measures have been taken in order to decrease the number of
detainees in remand prison IZ-39/l and improve conditions of
detention there “in the light of the requirements of the
Convention”. Thus, in 2003 a new pre-trial detention facility
for one hundred and seventy detainees was opened. Furthermore, repair
work was carried out in the remand prison. In particular, the
lavatory was now separated from the cell by a curtain. The Government
enclosed photographs of the cells after the renovation.
- The
Government further maintained that the applicant had never been
detained with young offenders. Furthermore, he had never been
detained in the basement because there are no cells in the basement
of the prison.
-
The Government indicated that they were not in a position to comment
on the statements of Mr M. T., Mr Y. V. and Mr A. K., (the
applicant's co-detainees), because they had been released in 2000,
2002 and 2004 respectively.
- The
applicant insisted on his original submissions and claimed that his
description of conditions in the remand prison was accurate.
2. The Court's assessment
(a) Establishment of facts
-
The parties agreed upon the size of the two cells in which the
applicant had been detained. Furthermore, it is not disputed that the
applicant was allowed outdoor activity for one or two hours a day;
the rest of the time he was confined to his cell where he ate, slept
and used the toilet together with his cellmates.
- The
Court notes that the parties have disputed certain aspects of the
conditions of the applicant's detention in facility no. IZ-39/1 in
Kaliningrad. However, there is no need for the Court to establish the
veracity of each and every allegation because it finds a violation of
Article 3 on the basis of facts presented to it, which the
respondent Government did not dispute or failed to rebut.
- The
focal point for the Court's assessment is the living space afforded
to the applicant in the remand prison. According to the
applicant, the number of inmates there had considerably exceeded
their design capacity. Thus, at best, in both cells, the inmates had
less than one square metre of space per person. Sometimes, the
overcrowding was even more severe. The number of bunk beds was
significantly smaller than the number of detainees.
- The
Court further notes that the applicant's own account on this matter
is corroborated by his cellmates' testimony. There is nothing in the
case file or in the Government's submissions that might cast doubt on
the credibility of their testimony.
- Finally,
the Court notes that it is already familiar with the situation in the
prison in question, IZ-39/1. This same prison appeared in the case of
Mayzit v. Russia, where the Court found a violation of Article
3 on account of the detention conditions, and, in particular,
overcrowding (see Mayzit v. Russia, no. 63378/00, §§
34-43, 20 January 2005.). Overcrowding in remand prison IZ-39/1
was also at the heart of another, more recent case –
Skorobogatykh v. Russia
(no. 4871/03, §§ 8 and 9, 22 December 2009, not yet
final). Mr Skorobogatykh was detained in that prison from March
to December 1998; Mr Mayzit was detained there from July 2000 to
July 2001; the applicant was detained in that prison from
October 1999 to September 2000. The findings of fact in Mayzit
and Skorobogatykh are not decisive
for establishing the facts in the present case. However, they are
suggestive and the Court will take them into account.
- The
Court reiterates in this connection that Convention proceedings 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, such
as those arising from the present application, the respondent
Government alone have access to information capable of corroborating
or refuting allegations. A 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).
- The
Government, on their side, claimed that there was no data available
on the number of inmates detained together with the applicant. They
informed the Court that the relevant records had been destroyed. The
Court finds it extraordinary, however, that the authorities kept
information about the exact temperature and amount of light in the
cells (see paragraph 13 above for their account of the sanitary
and hygiene conditions) while such basic information as the number of
inmates had not been kept. Furthermore, even if the Court assumes
that the relevant official documents have indeed been destroyed, as
the Government suggested, it does not relieve the Government of their
procedural obligation to rebut the applicant's allegations of
overcrowding.
- Having
regard to the principle cited above, together with the fact that the
Government did not submit any convincing relevant information, the
Court will examine the issue concerning the number of inmates in
remand prison no. IZ-39/1 on the basis of the applicant's
submissions.
(b) The Court's analysis of facts
- The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, §§ 104 et
seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00,
§§ 44 et seq., 16 June 2005; Novoselov v. Russia,
no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit
v. Russia, no. 63378/00, §§ 39 et seq.,
20 January 2005; Kalashnikov v. Russia, no. 47095/99,
§§ 97 et seq., ECHR 2002-VI; and Peers v. Greece,
no. 28524/95, §§ 69 et seq., ECHR 2001-III). More
specifically, the Court reiterates that it recently found a violation
of Article 3 on account of a criminal defendant's nine months'
detention in overcrowded conditions in the same detention facility
(see Mayzit, cited above, §§ 34-43). In Mayzit,
where there had been less than two square metres of space per inmate,
the Court concluded that the cells had been overcrowded, “something
which in itself raises an issue under Article 3 of the Convention.”
In the present case, the applicant had even less personal space (less
than one square metre) and was detained for a longer period of time
(eleven months).
- Irrespective
of the reasons for the overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its penitentiary
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). As regards subsequent developments (refurbishment of the
cells, opening of a new remand prison, etc.), however positive they
might be, they are irrelevant for the assessment of the applicant's
complaints raised above.
- Having
regard to its case-law on the subject and the material submitted by
the parties, 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 Court notes that for eleven
months the applicant was obliged to live, sleep and use the toilet in
the same cell as many other inmates. That fact 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.
- The
Court finds, accordingly, that there has been a violation of Article
3 of the Convention, because the applicant was subjected to inhuman
and degrading treatment on account of the conditions of his detention
in facility no. IZ-39/1 in Kaliningrad.
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 300,000 roubles (RUB) in respect of non-pecuniary
damage. At the moment when the claim was made, that amount
corresponded to approximately 8,650 euro (EUR).
- The
Government considered the applicant's claim 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 serious violation of the applicant's
rights in the present case. The applicant spent eleven months in
inhuman and degrading conditions. 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, the Court finds the applicant
reasonable and awards him EUR 8,650 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 for translation costs incurred in
the proceedings before the Court (RUB 43,804, about EUR 1,260
at the time) and compensation of the lawyer's fees (RUB 27,000,
about EUR 780). He produced invoices from the translator.
- The
Government considered that the applicant had failed to demonstrate
that the amount of RUB 27,000 had actually been paid by him to
the lawyer. As to the legal costs (translation expenses) they
considered them excessive.
- 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 406 has already been paid to the applicant by way
of legal aid. The applicant has failed to submit an agreement with
his lawyer or any invoice from her. In such circumstances, the Court
does not consider it necessary to make an award under this head.
- As
to the translation costs, the Court considers that the amount claimed
by the applicant is excessive. Deciding on an equitable basis and
having regard to the details of the claim submitted by the applicant,
the complexity of the correspondence needing to be translated and
other relevant factors, the Court awards the applicant the sum of
EUR 350 together with any value-added tax that may be
chargeable.
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
- Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention in the remand prison;
- 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 8,650
(eight thousand six hundred fifty euros) in respect of non-pecuniary
damage, as well as EUR 350 (three hundred fifty euros) for costs
and expenses, to be converted into Russian roubles at the rate
applicable on the date of settlement, plus any tax that may be
chargeable to the applicant on those amounts;
(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 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
