In the case of Razvyazkin v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 12 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13579/09) 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 Vyacheslavovich Razvyazkin
(“the applicant”), on 5 March 2009.
The applicant, who had been granted legal aid,
was represented by Mr V. Shukhardin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
The applicant complained, in particular, about the
conditions of his solitary confinement in the correctional colony’s punishment
cells, and also that medical assistance had been inadequate, that there had
been no effective domestic remedy with regard to the above issues, and that the
civil proceedings to which he was a party (procedural inequality and
proceedings not held in public) had been unfair.
On 10 January 2011 the above complaints were communicated
to the Government under Articles 3, 6 § 1 and 13 of the Convention. It was
decided to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and is currently
serving a term of imprisonment in correctional colony IK-4, Tula Region.
A. The applicant’s conviction and imprisonment
On 6 April 2001 the Moscow City Court convicted
the applicant of robbery and murder and sentenced him to thirteen years’
imprisonment.
On 3 August 2001 the applicant was sent to
correctional colony IK-4, Tula Region (ФБУ “Исправительная колония
№ 4” УФСИН по Тульской области),
to serve his sentence.
Between 2001 and 2010 the
applicant was repeatedly disciplined for breaching colony rules, including by
placement in punishment cells or SHIZO (ШИЗО)
and solitary confinement cells or PKT (ПКТ).
In August 2006 the applicant was declared a “persistent rule-breaker” and
placed in the colony’s strict regime unit (СУС).
Between December 2007 and December 2010 the
applicant was held in solitary confinement cells almost uninterruptedly, the
disciplinary measure being applied every time on account of the applicant’s
refusal to return to the strict regime unit. The applicant was never provided
with copies of the decisions placing him in the PKT, as it was not required
under domestic law.
On 12 March 2010 the Plavskiy District Court,
Tula Region, reviewed the qualification of the applicant’s conviction in
connection with the entry into force of amendments to the Criminal Code.
On 30 June 2010 the Tula Regional Court, having
examined the above judgment on appeal, reduced the applicant’s sentence to
twelve years and ten months’ imprisonment.
On 27 January 2011 the applicant was transferred
from the strict regime unit to a regular unit.
B. Conditions of the applicant’s detention in PKT solitary
confinement and relevant complaints
On numerous occasions between
December 2007 and December 2010 the applicant was held in solitary confinement in
PKT punishment cells in correctional colony IK-4, Tula Region. The dates of the
applicant’s stay in various PKT cells as from December 2007 until December 2010
are given in the table below:
1. The Government’s account
Cell 10 measured 6.7 square metres and cells 14
and 17 measured 12.1 square metres. No information was provided regarding the measurements
of cells 2 and 5.
Each cell was lit by two 40-watt filament lamps
from 5 a.m. to 9 p.m. and by a 40-watt security light from 9 p.m. to
5 a.m. Natural lighting was available through windows measuring 90 by 50 cm and
covered with grids on both the inside and the outside of the cell.
The cells were not equipped with ventilation as
such. However, natural ventilation was available through window vents.
The cells were equipped with central heating.
The average winter temperature was maintained at 18 degrees Celsius and the
average summer temperature at 20-25 degrees Celsius.
In each cell the lavatory was situated in the
corner and was separated from the living area by a brick partition 1.4 to 1.5
metres high. It was separated from the bunk beds and the dining table by
sufficient distance.
The applicant was provided with hot meals three
times a day in accordance with the established legal norms. Once a week he
could take a shower. After each shower the applicant was provided with clean
linen.
The cells were rodent-free. Regular monthly
disinfections, delousing and disinfestations were carried out in the facility.
The applicant enjoyed daily outside exercise, limited
to one and a half hours. The PKT exercise yards, which measured 13.8 to 15.7
square metres, provided shelter from rain yet provided access to fresh air and
daylight.
The applicant was found fit to
be detained in PKT punishment cells on 14 March, 6 and 14 June and
29 August 2008, 25 April and 26 August 2009, and 27 January, 27 February
and 6 July 2010. The doctors never assessed the applicant’s physical or
psychological capacity to deal with long-term solitary confinement, as it was
not part of their duties.
The Government supported their submissions with documents
issued by the director of IK-4 on 24 February and 2 and 10 March
2011, a document issued by the director of IK-2 on 28 February 2011, and
the applicant’s medical file.
The Government were unable to
provide any information as to the effect that the long-term solitary confinement
has had on the applicant.
2. The applicant’s account
The applicant alleged that the windows in the
cells provided very limited daylight. The cells were stuffy and damp, cold in
winter and hot in summer. The central heating did not function.
The food was very dull and consisted mainly of
cooked cereal.
The cells were overrun by rats.
The applicant was not allowed to receive visits from members of his family or
to receive parcels from outside. His access to reading material was
restricted. He could not use his sleeping place during the day without special
permission to that effect from a doctor.
The applicant submitted that he was not fit to
stay long in solitary confinement. He referred to a document issued by the
colony’s psychological laboratory on 11 November 2004 which, having carried out
a psychological examination of the applicant, arrived at the following
conclusions:
“...Recommendations:
1. It is necessary to monitor periodically the
establishment and development of [the applicant’s] interpersonal relationships.
2. It should be taken into consideration that [the
applicant] operates more productively in a dynamic and diverse environment
associated with constant communication.
3. Solitude, monotony, and strict discipline are
contra-indicated ...”
3. Relevant complaints
On 28 May
2008 the applicant challenged before the court the lawfulness of his placement
in a PKT punishment cell on 14 March 2008. He claimed, in particular, that
such a measure was incompatible with his severe health problems and amounted to
inhuman and degrading treatment in violation of Article 3 of the Convention.
The applicant asked the court to examine the case in the presence of his
representative.
On 26 June 2008 the applicant’s representative
was informed that the off-site court hearing would take place on 30 June 2008
at 9.30 a.m. in correctional colony IK-4.
On 30 June 2008 at 9.30 a.m. the representative
arrived at the colony for the hearing. With him was an expert from the Defence
of Prisoners’ Rights Fund (“the Fund”) who the applicant also wanted to act in
his defence. However, the director of the colony did not allow either of them
on the premises of the colony, since the applicant’s representative was
carrying a dictaphone, a mobile phone, a camera and a laptop, which he refused
to leave at the entrance, and because the person from the Fund did not have any
documents determining her status in the proceedings.
The hearing started at 11.30 a.m. without the
applicant’s representative.
The court read out the request from the
applicant’s representative for the hearing to be held at Plavskiy District
Court, Tula Region, on the grounds that it would be unlawful to hold the
hearing of the case in a closed controlled-access facility.
The representative of the
colony submitted that all those wishing to participate in the hearing could do
so and asked that the above request be dismissed.
The court dismissed the request in question,
stating that the domestic law did not provide for the possibility of transfer
of convicts so that they could participate in the hearing of their civil cases.
The court observed that the hearing could be
held without the applicant’s representative. The applicant objected.
The representative of the colony submitted that
the applicant’s representative had not been allowed into the colony because he
was carrying a dictaphone, a mobile phone, a camera and a laptop without having
obtained permission to use such equipment.
The court decided to proceed without the
applicant’s representative.
The applicant refused to participate in the
hearing without the representative. He stated that he would make no
submissions, as he feared for his own safety, and left the hearing room.
The court proceeded without the applicant.
Having examined the material of the case and heard the representative of the
colony, the court dismissed the applicant’s claim. The court held that the
decision to transfer the applicant to the PKT punishment cell had been lawful
and that it had not breached the applicant’s rights.
The applicant appealed. He complained, inter
alia, that the hearing of his case in the first instance had taken place on
the premises of a closed controlled-access facility to which his representative
had been unlawfully denied access, which amounted to a violation of his right
to defence and breached the principle of equality of arms. The applicant
requested that the examination of his case on appeal be carried out in the
presence of both himself and his representative.
On 11 September 2008 Tula Regional Court, having
examined the case-file material, the arguments put forward by the applicant and
having heard the applicant’s representative, upheld the judgment of
30 June 2008 on appeal. The court held that the applicant’s representative
had refused to abide by the requirements of the facility’s management that he
should be granted access, and that the applicant had himself chosen to leave
the courtroom.
On 13 October 2008 the
applicant’s representative challenged before the court the applicant’s ten
months’ almost uninterrupted confinement in PKT punishment cells. Citing
Article 3 of the Convention, the applicant’s representative claimed that the
applicant’s confinement in the PKT significantly affected his physical and
mental health, and has been causing him distress and anguish exceeding the
legally acceptable level. He relied, in particular, on the limitation of the
time for outside walks, restrictions on receiving parcels from the outside and
family visits, poor nutrition, restrictions on reading material, and inadequate
medical assistance.
On 17 November 2008 the Plavskiy District Court,
Tula Region, having examined the lawfulness of application of the disciplinary
sanctions to the applicant, dismissed the claim. The court found that the
applicant’s health did not prevent him from being detained in the PKT
punishment cells, and that placement there did not amount to a violation of the
applicant’s rights and freedoms. The court did not establish a causal link
between the decisions to place the applicant in the PKT punishment cells and
the latter’s health problems. The complaints of inadequate medical assistance
were found unsubstantiated.
On 5 March 2009 the Tula Regional Court upheld the above judgment on appeal.
On 13 October 2008 and 17
February 2009 the applicant’s representative challenged the lawfulness of the
decision of the head of IK-4 to refuse to hand over to the applicant a human
rights magazine. On 5 March 2009 and 9 September 2009 respectively
the Tula Regional Court, as the final court of appeal, dismissed the applicant’s
challenge finding the decisions lawful.
On 6 September 2010 the
applicant’s representative complained to the Tula Region Prosecutor’s Office
supervising compliance with the law in correctional facilities about the conditions
of the applicant’s detention in the PKT punishment cells. On 5 October 2010 the
Prosecutor’s Office found the above complaint unsubstantiated.
C. Medical assistance and relevant complaints
1. Applicant’s medical conditions and treatment
The applicant’s medical file indicates
that from his arrival at the IK‑4 facility on 3 August 2001 the applicant
was treated by a psychiatrist of the medical unit for “personality disorder of
hysterical type and organic disorder of the central nervous system, of complex
origin”. He regularly received outpatient treatment at the correctional colony’s
medical unit.
On numerous occasions throughout
his detention in IK-4 the applicant received inpatient treatment for various conditions:
consequences of craniocerebral injury, psychopathy, hysterical personality
disorder, psychotic disorder, paranoid
disorder, asthenovegetative syndrome, encephalopathy, hyperopia, partial optic
nerve atrophy, osteochondrosis, chronic gastritis, duodenitis,
arthrosis of left mandibular joint, chronic orchiepididymitis, chronic
prostatitis, varix dilatation of lower limbs, gallbladder deformation, urine acid diathesis, chronic pancreatitis, gastrointestinal
tract dyskinesia and heel spurs. The applicant underwent this treatment at
the medical unit of IK-4, the Tula Regional prison hospital at correctional colony
IK-2, and the Interregional Psychiatric Hospital in Smolensk.
On several occasions the applicant
underwent inpatient ophthalmological examination and treatment in the regional
prison hospital for his hyperopia and partial optic nerve atrophy. In
particular, specialised ophthalmological treatment was provided to the
applicant between 26 July and 2 August 2002, between 26 February
and 4 March 2004, between 2 and 11 November 2005, between
20 and 26 April 2007, between 22 and 28 February 2008,
between 11 and 21 April 2008, and between 3 and 10 April
2009. On 10 February 2011 the applicant was examined by an ophthalmologist
at the regional prison hospital and diagnosed with partial atrophy of the optic
nerves, hyperopia and hypermetric astigmatism. Inpatient treatment was
recommended. The case file contains no further information regarding this
issue.
In August 2009 the applicant
was diagnosed with oblique fracture of the instep bone of the right foot. The
head of the IK-4 medical unit informed the applicant of the diagnosis. The
applicant, however, denied the injury and submitted that he had hurt himself in
2000. The applicant was given crutches and prescribed bed rest.
2. Relevant complaints
In November 2008 the IK-4 medical
unit referred the applicant to the regional prison hospital for a check-up and
treatment for rapidly deteriorating eyesight and atrophy of optic nerves.
Since three months later the applicant had still
not been transferred to the regional prison hospital, on 5 March 2009 the
applicant’s representative challenged before the court the failure of the
administration of the IK-4 correctional colony to send the applicant to the
regional prison hospital.
On 25 March 2009 the Plavskiy District
Court, Tula Region, allowed the claim and obliged the IK-4 administration to
send the applicant to the regional prison hospital for examination and
treatment of his eyesight problems.
From 3
April to 10 April 2009 the applicant underwent treatment in the regional prison
hospital.
It appears from the Government’s submissions
that between 2004 and 2010 the applicant made numerous complaints to the Tula
Regional Prosecutor’s Office of inadequate medical assistance in the IK-4, to
no avail. Neither party provided copies of the relevant complaints or replies
to them.
D. Proceedings related to the applicant’s transfer to
a prison regime
In January 2009 the IK-4 correctional colony
authorities requested that the applicant be transferred to a prison.
On 27 January 2009 Plavskiy District Court, Tula
Region, decided to transfer the applicant to a prison for two years. The
hearing took place in the colony. The applicant’s representative was not
granted access, because he had a dictaphone, a mobile phone, a camera and a
laptop with him. The applicant refused to participate in the hearing, giving as
reasons his health and the absence of his representative. He requested that the
hearing be adjourned, without success. The representative of the colony made
oral submissions to the court.
On 15 April 2009 the Tula Regional Court quashed
the judgment on appeal in view of a violation of the applicant’s right to
defence, and remitted the case for a fresh examination.
On 16 June 2009 Plavskiy District Court decided
to transfer the applicant to prison for two years. The applicant was properly
represented by counsel.
On 19 August 2009 Tula Regional Court quashed
the judgment of 16 June 2009 on appeal, because the court had failed to
examine the disciplinary offences committed by the applicant and the validity
of the sanctions imposed on the latter as a result.
On 26 November 2009 Plavskiy District Court again
decided to transfer the applicant to prison for two years. The court held that
there was no evidence that such a transfer would be incompatible with the
applicant’s state of health.
On 24 March 2010 Tula Regional Court quashed the
judgment of 26 November 2009 on appeal, because the court had failed to
examine the circumstances in which disciplinary sanctions had been imposed on
the applicant in 2007 and 2008.
On 21 June 2010 Plavskiy District Court decided once
more to transfer the applicant to prison for two years.
On 30 September 2010 the case was moved to a new
territorial jurisdiction and the case was transferred to Shchekinskiy District
Court, Tula Region.
On 24 November 2010 the Shchekinskiy District
Court refused the applicant’s transfer to a prison. The court held that the disciplinary
sanctions imposed on the applicant in the period between 2004 and 2008 had been
unlawful and unjustified, so as the decision to declare the applicant a
“persistent rule-breaker” and his transfer to the strict regime unit. On
12 January 2011 the Tula Regional Court upheld the above decision on
appeal.
However, on 14 June 2011 the Presidium of the Tula Regional Court quashed the decision of 24 November 2010, as upheld on appeal on 12 January
2011, and remitted the matter for fresh consideration.
On 22 July 2011 the Shchekinskiy District Court
discontinued the proceedings in view of the fact that the administration of the
colony had withdrawn its request for the applicant to be transferred to a
prison regime.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Russian Federation
Article 21:
“1. Human dignity shall be protected by the State. Nothing may
serve as a basis for its derogation.
2. No one shall be subject to torture, violence or other severe
or humiliating treatment or punishment ...”
Article 41:
“1. Everyone shall have the right to health protection and
medical aid. Medical aid in state and municipal health establishments shall be
rendered to individuals gratis, at the expense of the corresponding budget,
insurance contributions, and other proceeds ...”
Article 123:
“1. Examination of cases in all courts shall be open.
Examinations in camera shall be allowed only in cases envisaged by the federal
law.
2. ...
3. Judicial proceedings shall be held on the
basis of controversy and equality of the parties.”
B. The
Code on the Execution of Sentences (of 8 January 1997 no. 1‑FZ)
Male inmates serving their sentences in
correctional colonies of general and strict regimes who have been declared
persistent rule-breakers of the established order of sentence serving can be
placed in PKT punishment cells for a period of up to six months (Article 115 § 1).
The placement of inmates in PKT punishment cells
is carried out with indication of a specific end date for that measure (Article 117 § 4).
Inmates subjected to placement in PKT punishment
cells can be subjected to disciplinary measures other than placement in PKT
punishment cells (Article 117 § 5).
Inmates placed in PKT
punishment cells have the right to spend 500 roubles per month on
foodstuffs and articles of prime necessity, to receive a parcel once every six
months, to have one-and-a-half hours’ daily outdoor exercise, and, upon
approval by the administration of the correctional facility, to receive a short-term
visit once every six months (Article 118 § 2).
A priest of an officially registered religious association can be called to an
inmate in a PKT punishment cell at his request (Article 118 § 2.1).
Inmates placed in PKT punishment cells work separately from other inmates
(Article 118 § 3). The time that an inmate subjected to placement
in PKT punishment cell spends in medical establishments of the prison system is
counted as part of his detention in the PKT (Article 118 § 5).
Inmates are entitled to
primary health care and specialised inpatient and outpatient medical care (Article 12 § 6).
Medical units and hospitals (including
specialised psychiatric and tuberculosis hospitals) are available within the
penal system to provide medical care for inmates (Article 101 § 2).
Convicts can 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). The Code does not indicate any
opportunity for a convicted person to take part in civil proceedings, whether
as a plaintiff or defendant.
C. The Code of Civil Procedure (of 14 November
2002 no. 138-FZ)
The hearing of civil cases in all courts shall
be held in public, with some exceptions. Those involved in the case and those
present in open court have the right to record the progress of the trial by
taking written notes or by means of audio recording. Photography, video
recording and broadcasting the hearing on radio and television are allowed with
the permission of the court. Judgments are pronounced publicly, except when
they concern the rights and legitimate interests of minors
(Article 10 §§ 1, 7 and 8).
Judicial proceedings in civil cases shall be
adversarial and based on equality between the parties (Article 12).
Individuals can appear before the court in
person or act through a representative (Article 48 § 1).
A court can hold an off-site session if, for
instance, it is necessary to examine evidence which cannot be brought to the
court-house (Articles 58 and 184).
D. Internal Regulations of Correctional Institutions,
enacted by Ministry of Justice order 205 of 3 November 2005
A correctional facility provides medical
examinations, supervision and treatment of inmates, using the means and
facilities recommended by the Ministry of Health Care. It provides storage and
distribution of medicines and other medical items, detection of
contraindications for professional suitability, and medical expert opinion in
case of temporary disability (Section 122).
In instances where medical aid cannot be
provided in a medical institution within the penal system the inmate can be
transferred to a medical institution within the state or municipal health care
system (Section 124).
Short-term visitors to
inmates are prohibited from carrying any items (including cameras, photo
materials, movie cameras, video and audio equipment, communication devices, and
so on)
into correctional institutions. Such items are to be left with a junior inspector
responsible for the meeting until the end of their visit (Sections 76 and 80).
E. Case-law of the Constitutional Court and the
Supreme Court
On several occasions the Constitutional Court examined complaints by
convicts whose requests for leave to appear in civil proceedings had been
refused by courts. It consistently declared the complaints inadmissible,
finding that the contested provisions of the Code of Civil Procedure and the
Code on the Execution of Sentences did not, as such, restrict the convicted
person’s access to court. It emphasised, nonetheless, that a convicted person
should be able to make submissions to a civil court, either through a
representative or in any other way provided by law. If necessary, the hearing could
be held at the location where the convicted person was serving the sentence or
the court hearing the case could instruct the court with territorial
jurisdiction over the correctional colony to obtain the applicant’s submissions
or take any other procedural steps (decisions no. 478-O of 16 October
2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February
2008).
In 2009 the Supreme Court held that the
provisions of sections 76 and 80 of the Internal Regulations of Correctional
Institutions should not be applied to lawyers as long as it was necessary for
them to bring with them the items in question during their visits to
correctional institutions in order for them to provide their clients with qualified
legal assistance (decision of 15 April 2009 no. ГКПИ09-13).
III. RELEVANT COUNCIL OF EUROPE DOCUMENT
Solitary confinement of prisoners
The relevant extracts from
the 21st General Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
(CPT/Inf (2011) 28) read as follows:
“53. Solitary confinement of prisoners ... can have
an extremely damaging effect on the mental, somatic and social health of those
concerned. This damaging effect can be
immediate and increases the longer the measure lasts and the more indeterminate
it is ...
54. The CPT understands the term “solitary
confinement” as meaning whenever a prisoner is ordered to be held separately
from other prisoners, for example, as a result of a court decision, as a
disciplinary sanction imposed within the prison system, as a preventative
administrative measure or for the protection of the prisoner concerned ...
55. Solitary confinement further restricts the
already highly limited rights of people deprived of their liberty. The extra
restrictions involved are not inherent in the fact of imprisonment and thus
have to be separately justified. In order to test whether any particular
imposition of the measure is justified, it is appropriate to apply the
traditional tests enshrined in the provisions of the European Convention on
Human Rights and developed by the case-law of the European Court of Human
Rights. ...
(a) Proportionate: any further restriction of
a prisoner’s rights must be linked to the actual or potential harm the prisoner
has caused or will cause by his or her actions (or the potential harm to which
he/she is exposed) in the prison setting. Given that solitary confinement is a
serious restriction of a prisoner’s rights which involves inherent risks to the
prisoner, the level of actual or potential harm must be at least equally
serious and uniquely capable of being addressed by this means. ... The longer
the measure is continued, the stronger must be the reason for it and the more
must be done to ensure that it achieves its purpose.
(b) Lawful: provision must be made in
domestic law for each kind of solitary confinement which is permitted in a
country, and this provision must be reasonable. It must be communicated in a
comprehensible form to everyone who may be subject to it. The law should
specify the precise circumstances in which each form of solitary confinement
can be imposed, the persons who may impose it, the procedures to be followed by
those persons, the right of the prisoner affected to make representations as
part of the procedure, the requirement to give the prisoner the fullest
possible reasons for the decision ..., the frequency and procedure of reviews
of the decision and the procedures for appealing against the decision. The
regime for each type of solitary confinement should be established by law, with
each of the regimes clearly differentiated from each other.
(c) Accountable: full records should be
maintained of all decisions to impose solitary confinement and of all reviews
of the decisions. These records should evidence all the factors which have been
taken into account and the information on which they were based. There should
also be a record of the prisoner’s input or refusal to contribute to the
decision-making process. Further, full records should be kept of all
interactions with staff while the prisoner is in solitary confinement, including
attempts by staff to engage with the prisoner and the prisoner’s response.
(d) Necessary: the rule that only
restrictions necessary for the safe and orderly confinement of the prisoner and
the requirements of justice are permitted applies equally to prisoners
undergoing solitary confinement. Accordingly, during solitary confinement there
should, for example, be no automatic withdrawal of rights to visits, telephone
calls and correspondence or of access to resources normally available to
prisoners (such as reading materials). Equally, the regime should be flexible
enough to permit relaxation of any restriction which is not necessary in individual
cases.
(e) Non-discriminatory: not only must all
relevant matters be taken into account in deciding to impose solitary
confinement, but care must also be taken to ensure that irrelevant matters are
not taken into account. Authorities should monitor the use of all forms of
solitary confinement to ensure that they are not used disproportionately,
without an objective and reasonable justification, against a particular
prisoner or particular groups of prisoners.
56. ... Withdrawal of a prisoner from contact with
other prisoners may be imposed under the normal disciplinary procedures
specified by the law, as the most severe disciplinary punishment. ...
Given the potentially very damaging effects of solitary
confinement, the CPT considers that the principle of proportionality requires
that it be used as a disciplinary punishment only in exceptional cases and as a
last resort, and for the shortest possible period of time. ... The CPT
considers that the maximum period should be no higher than 14 days for a given
offence, and preferably lower. Further,
there should be a prohibition of sequential disciplinary sentences resulting in
an uninterrupted period of solitary confinement in excess of the maximum
period. Any offences committed by a prisoner which it is felt call for more
severe sanctions should be dealt with through the criminal justice system.
57. ... The reason for the imposition of solitary
confinement as a punishment, and the length of time for which it is imposed,
should be fully documented in the record of the disciplinary hearing. Such
records should be available to senior managers and oversight bodies. There
should also be an effective appeal process which can re-examine the finding of
guilt and/or the sentence in time to make a difference to them in practice. A
necessary concomitant of this is the ready availability of legal advice for
prisoners in this situation. Prisoners undergoing this punishment should be
visited on a daily basis by the prison director or another member of senior
management, and the order given to terminate solitary confinement when this
step is called for on account of the prisoner’s condition or behaviour. Records
should be kept of such visits and of related decisions.
58. The cells used for solitary confinement should
meet the same minimum standards as those applicable to other prisoner
accommodation. Thus, they should be of an adequate size, enjoy access to
natural light and be equipped with artificial lighting (in both cases
sufficient to read by), and have adequate heating and ventilation. They should
also be equipped with a means of communication with prison staff. Proper
arrangements should be made for the prisoners to meet the needs of nature in a
decent fashion at all times and to shower at least as often as prisoners in
normal regime. Prisoners held in solitary confinement should be allowed to wear
normal prison clothing and the food provided to them should be the normal
prison diet, including special diets when required. As for the exercise area used
by such prisoners, it should be sufficiently large to enable them genuinely to exert
themselves and should have some means of protection from the elements...
61. As with all other regimes applied to prisoners,
the principle that prisoners placed in solitary confinement should be subject
to no more restrictions than are necessary for their safe and orderly
confinement must be followed. Further, special efforts should be made to
enhance the regime of those kept in long-term solitary confinement, who need
particular attention to minimise the damage that this measure can do to them.
It is not necessary to have an “all or nothing” approach to the question. Each
particular restriction should only be applied as appropriate to the assessed
risk of the individual prisoner. Equally, as already indicated, there should be
a clear differentiation between the regimes applied to persons subject to
solitary confinement, having regard to the type of solitary confinement involved.
(b) Prisoners undergoing solitary confinement as a disciplinary
sanction should never be totally deprived of contacts with their families and
any restrictions on such contacts should be imposed only where the offence
relates to such contacts. And there should be no restriction on their right of
access to a lawyer. They should be entitled to at least one hour’s outdoor
exercise per day, from the very first day of placement in solitary confinement,
and be encouraged to take outdoor exercise. They should also be permitted
access to a reasonable range of reading material .... It is crucially important
that they have some stimulation to assist in maintaining their mental wellbeing...
63. ... Health-care staff should be very attentive to the
situation of all prisoners placed under solitary confinement. The health-care
staff should be informed of every such placement and should visit the prisoner
immediately after placement and thereafter, on a regular basis, at least once
per day, and provide them with prompt medical assistance and treatment as
required. They should report to the prison director whenever a prisoner’s
health is being put seriously at risk by being held in solitary confinement. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION
ON ACCOUNT OF THE APPLICANT’S SOLITARY CONFINEMENT
The applicant complained under
Article 3 of the Convention about the conditions of his almost uninterrupted solitary
confinement between December 2007 and December 2010 in the correctional colony’s
PKT punishment cells. Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
He also claimed that he did not have at his disposal an
effective remedy for the violation of the guarantee against ill-treatment,
which is required under Article 13 of the Convention reading as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority ....”
A. The parties’ submissions
The applicant submitted that his long-term solitary
confinement had significantly affected his mental health. He became unstable,
depressive, apathetic and desperate. The decisions by which he was found fit
for confinement in PKT punishment cells were taken by unqualified medical
staff, mostly by medical assistants, and, in some rare cases, by a therapist.
Furthermore, at no time did the domestic authorities undertake to assess the effect
his long-term solitary confinement was having on his physical and mental
well-being. The applicant further maintained his complaint as to the absence of
an effective domestic remedy with regard to his complaint under Article 3. He
noted, in particular, the difficulties in collecting evidence to substantiate
his grievances relating to the conditions of his detention and the lack of
procedural parity between the parties in arguing such claims before the
domestic courts.
For their part, the Government argued that the
conditions of the applicant’s detention in IK-4 punishment cells complied with
Article 3 of the Convention. In their view, the nature and the context of the
applicant’s treatment and the effect of this treatment on his physical and
mental condition did not attain the minimum level of severity. The Government
further submitted that the applicant had at his disposal, and had repeatedly
used, domestic remedies for his complaints about conditions of his detention in
the PKT. In that respect they referred to the various claims brought by the
applicant’s representative before the domestic court.
B. The Court’s assessment
1. Admissibility
(a) Compliance with the six-month time-limit
The six-month period runs from the date of the
final decision in the process of exhaustion of domestic remedies. Where no
effective remedy is available to the applicant the period runs from the date of
the acts or measures complained of, or from the date of the knowledge of that
act or its effect on or prejudice to the applicant (see Dennis
and Others v. the United Kingdom (dec.), no. 76573/01, 2
July 2002). In cases featuring a continuing situation, the six-month period
runs from the cessation of that situation (see Seleznev
v. Russia, no. 15591/03, § 34, 26 June 2008, and
Koval
v. Ukraine (dec.), no. 65550/01, 30 March 2004).
The concept of a “continuing situation” refers
to a state of affairs in which there are continuous activities by or on behalf of
the State which render the applicant a victim (see Posti
and Rahko v. Finland, no. 27824/95, § 39, ECHR
2002-VII). As a general rule, complaints which have as their source specific
events which occurred on identifiable dates do not create a continuing
situation (see Nevmerzhitsky
v. Ukraine (dec.), no. 54825/00, 25 November 2003,
where the applicant was subjected to force-feeding, and Tarariyeva
v. Russia (dec.), no. 4353/03, 11 October 2005, where
the applicant’s son was denied medical assistance). However, in the event of a
repetition of the same events, such as an applicant’s transport between a
remand prison and a court-house, even though the applicant was transported on
specific days rather than continuously, the absence of any marked variation 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). Similarly, in
a situation where the applicant’s detention in a police cell was not continuous
but occurred at regular intervals when he was taken there for interviews with
the investigator or other procedural acts, the Court accepted that in the
absence of any material change in the conditions of his detention, the breaking
up of his detention into several periods was not justified (see Nedayborshch
v. Russia, no. 42255/04, § 25, 1 July 2010).
In the present case, over the period of three
years between December 2007 and December 2010 the applicant was routinely
subjected to placement in correctional colony’s PKT solitary confinement
punishment cells (see paragraph 13 above). In view of this continuing practice
and in the absence of any marked variation in the conditions of the applicant’s
detention in those cells, the Court considers that the entire period should be
construed as a “continuing situation”. The application having been lodged on
5 March 2009, the applicant has therefore complied with the six-month
requirement of Article 35 § 1 of the Convention.
(b) Well-foundedness of the complaints
The Court considers that the applicant’s
complaints concerning the conditions of his solitary confinement in the correctional
colony’s PKT punishment cells and the lack of an effective domestic remedy in
this respect are not manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It is not inadmissible on any other grounds and must
therefore be declared admissible.
2. Merits
(a) Article 3
(i) General principles
The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society. It
prohibits in absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s behaviour (see,
among other authorities, Labita
v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV).
In order to fall under Article 3,
ill-treatment must attain a minimum level of severity. The assessment of this
minimum level is relative; it depends on all the circumstances of the case,
such as the duration of the treatment, its physical and mental effects and, in
some cases, the state of health of the victim (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such
treatment is a factor to be taken into account, in particular the question of
whether it was intended to humiliate or debase the victim, the absence of any
such purpose does not inevitably lead to a finding that there has been no
violation of Article 3 (see Peers, ibid.,
§ 74).
The Court has consistently
stressed that, for Article 3 to come into play, the suffering and humiliation
involved must in any event 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 an element of
suffering or humiliation. However, the State must ensure that a person is
detained under conditions which are compatible with respect for his human
dignity, 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 and that, given the practical demands of
imprisonment, his health and well‑being are adequately secured (see Kudła
v. Poland [GC], cited above, §§ 92-94).
The prohibition of contact with other prisoners
for security, disciplinary or protective reasons does not in itself amount to
inhuman treatment or punishment (see, most recently, Csüllög v.
Hungary, no. 30042/08, § 30,
7 June 2011). Whilst prolonged removal from association with others
is undesirable, whether such a measure falls within the ambit of Article 3 of
the Convention depends on the particular conditions, the stringency of the
measure, its duration, the objective pursued and its effects on the person
concerned (see Rohde
v. Denmark, no. 69332/01, § 93, 21 July 2005,
and A.B. v. Russia, no. 1439/06, § 102, 14 October 2010).
In order to avoid any risk of arbitrariness,
substantive reasons must be given when a protracted period of solitary
confinement is extended. The decision should thus make it possible to establish
that the authorities have carried out a reassessment that takes into account
any changes in the prisoner’s circumstances, situation or behaviour. The
statement of reasons will need to be increasingly detailed and compelling the
more time goes by. Furthermore, such measures, which are a form of
“imprisonment within the prison”, should be resorted to only exceptionally and
after every precaution has been taken. A system of regular monitoring of the
prisoner’s physical and mental condition should also be set up in order to
ensure its compatibility with continued solitary confinement (see Ramirez
Sanchez, v. France [GC], no. 59450/00, § 139, ECHR 2006-IX; Onoufriou
v. Cyprus, no. 24407/04, § 70, 7 January 2010; A.B.
v. Russia, cited above, § 108; and
Csüllög, cited above, § 31).
(ii) Application of those principles in the present
case
The Court notes that between December 2007 and
December 2010 the applicant was on numerous occasions placed in solitary
confinement PKT punishment cells of the correctional colony. The applicant
stayed in solitary confinement uninterruptedly from 12 December 2007 to
14 August 2008 (eight months), from 29 August to 29 November
2008 (three months), from 8 March to 8 April 2009 (one month), from
25 April to 25 May 2009 (one month), from 26 June to
26 September 2009 (three months), from 27 January to 27 March
2010 (two months), and from 6 May to 7 December 2010 (seven months).
The Court takes note that in addition to social isolation the applicant’s
placement in solitary confinement PKT punishment cells was associated with a
number of further restrictions involving, in particular, limited access to
outdoor exercise and limitations on family visits and receiving any parcels
from outside (see paragraph 76 above).
The Court accordingly notes that over a period
of three years the applicant was repeatedly returned to solitary confinement.
It notes several rather lengthy uninterrupted periods of solitary confinement of
the applicant in the PKT, and negligibly short breaks between some of them.
The Court reiterates that solitary confinement
without appropriate mental and physical stimulation is likely, in the long
term, to have damaging effects, resulting in deterioration of mental faculties
and social abilities (see Csüllög, cited above, § 30). It further observes in this connection the
conclusions of the CPT, which in its 2011 general report stated that the
damaging effect of solitary confinement can be immediate, and increases the
longer the measure lasts and the more indeterminate it is. Given the
potentially very damaging effects of solitary confinement, it should be used as
a disciplinary punishment only in exceptional cases and as a last resort, and
for the shortest possible period of time (see paragraph 89 above). Bearing in
mind the gravity of the measure, the domestic authorities are under an
obligation to assess all relevant factors in an inmate’s case before placing
him in solitary confinement (see A.B. v. Russia, cited above, § 104; Ramishvili
and Kokhreidze v. Georgia, no. 1704/06, § 83,
27 January 2009; and Onoufriou,
cited above, § 71).
In the present case the applicant was put in
solitary confinement in PKT punishment cells on account of his refusal to
return to the strict regime unit where he had been placed in August 2006 as a
“persistent rule-breaker” (see paragraph 8 above). The Court notes that the
Government have not provided copies of the relevant decisions on the applicant’s
placement in the PKT punishment cells. The Court is therefore unable to
establish whether any substantive reasons, aside from the applicant’s refusal
to comply with the lawful demands of the colony’s authorities, were put forward
by the authorities when the applicant was placed in solitary confinement in the
PKT punishment cells. Neither it is possible to ascertain whether the
authorities carried out any reassessment taking into account any possible
changes in the applicant’s situation, whether they assessed whether the imposed
disciplinary measure attained its purpose, or whether the statements of reasons
were increasingly detailed and compelling as time went by.
The Court notes that the applicant’s routine
placement in solitary confinement in the PKT punishment cells had been carried
out despite the findings of the correctional colony’s psychological laboratory
noting that solitude and monotony were contraindicated for the applicant and that
it was recommended that the establishment and development of the applicant’s interpersonal
relationships be monitored (see paragraph 30 above). It further observes that the
domestic authorities continuously applied the measure in question, despite the
applicant’s psychiatric disorders and various other chronic conditions (see
paragraphs 49-50 above). On nine occasions throughout the period under
consideration the applicant was found fit for detention in the PKT punishment
cells. On no occasion, however, did the domestic authorities assess the
applicant’s physical or psychological capacity to deal with long-term solitary
confinement and the effect that such routine solitary confinement for rather
extended periods of time ranging from one to eight months had on him over the
period of three years (see paragraphs 22 and 24 above). The Court observes in
this respect that those kept in long-term solitary confinement need particular
attention, to minimise the damage that this measure can do to them (see the
above-cited CPT general report for 2011).
In view of the above, the Court considers that
the applicant was routinely placed in solitary confinement PKT punishment cells
in the absence of any substantive reasons, in the absence of any objective
assessment of whether the repeated application of the measure in question
attained its goals, in disregard of the applicant’s physical and mental
condition and in disregard of the effect of the long-term solitary confinement
on his mental, physical and social health.
The Court therefore finds that the applicant’s repeated
solitary confinement in PKT punishment cells of correctional colony IK-4, Tula
Region, between December 2007 and December 2010, amounted to inhuman and
degrading treatment contrary to Article 3 of the Convention. In these
circumstances, the Court does not need to consider separately the applicant’s
arguments concerning the physical conditions of his detention in the PKT
punishment cells. The issue of the adequacy of the medical assistance provided
to the applicant will be examined separately.
(b) Article 13
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. 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. The
“effectiveness” of a “remedy” within the meaning of Article 13 does not depend
on the certainty of a favourable outcome for the applicant. Nor does the
“authority” referred to in that provision necessarily have to be a judicial
authority; but if it is not, its powers and the guarantees which it affords are
relevant in determining whether the remedy before it is effective. Also, even
if a single remedy does not by itself entirely satisfy the requirements of
Article 13, the aggregate of remedies provided for under domestic law may do so
(see Kudła, cited above, § 157,
and Čonka
v. Belgium, no. 51564/99, § 75, ECHR 2002-I).
The Court has previously found a violation of
Article 13 of the Convention on account of lack of an effective and accessible
remedy under Russian law in respect of complaints about general conditions
of detention (see, for detailed analysis of existing remedies,
Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 100-119, 10 January 2012, with
further references). The present case is, however, different, in that
the applicant’s complaint did not concern a problem of a general nature, but
his personal situation alone. In this connection the Court reiterates that
where the applicant’s complaint stems not from a known structural problem, such
as general conditions of detention, and overcrowding in particular, but from an
alleged specific act or omission by the authorities, the applicant must be
required, as a rule, to exhaust domestic remedies in respect of it (see Vladimir
Sokolov v. Russia, no. 31242/05,
§ 70, 29 March 2011, with
further references).
The Court observes that the applicant
challenged before the domestic court the lawfulness of his placements in the
PKT (see, as one example, paragraph 30 above). He further challenged before the
court his long-term confinement in the PKT punishment cells, claiming that it
has been affecting his physical and mental well-being and causing him distress
and anguish exceeding the legally acceptable level it (see paragraph 44 above).
The applicant subsequently challenged before the domestic court the
restrictions imposed on him in connection with his placements in the PKT (see
paragraph 47 above). Furthermore, he raised the issue of the conditions of his
confinement in the PKT punishment cells before the prosecutor (see paragraph 48
above). On each occasion the domestic authorities addressed the substance of
the applicant’s complaints and gave reasons for their decisions. It is true
that the outcome of the proceedings in question was unfavourable to the
applicant, as his claims were rejected. However, in the Court’s view this fact
alone cannot be said to have demonstrated that the remedy under examination did
not meet the requirements of Article 13.
In the light of the foregoing, the Court
concludes that there has been no violation of Article 13 of the Convention in conjunction with Article 3 of the
Convention on account of the applicant’s sequential solitary confinement
between December 2007 and December 2010 in the correctional colony’s PKT
punishment cells.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION ON ACCOUNT OF THE ALLEGEDLY INADEQUATE MEDICAL ASSISTANCE
The applicant complained under Article 3 of the
Convention that he had not been provided with adequate medical assistance while
serving his sentence in correctional colony IK-4, Tula Region. He further
complained under Article 13 of the Convention that no effective domestic remedy
had been available to him in this regard. Articles 3 and 13 were both cited
above (see paragraph 90 above).
A. The parties’ submissions
The applicant asserted that
throughout his detention in correctional colony IK-4 his health had been
persistently deteriorating, his health problems worsening, and the medical
treatment being provided within the limits of medicines available at the colony’s
medical unit. No treatment had allegedly been provided for his deteriorating
eyesight and his fractured foot. The applicant further maintained his complaint
as to the absence of an effective domestic remedy with regard to his complaint of
inadequate medical assistance.
Relying on the applicant’s medical file (see
paragraphs 49-50 above), the Government submitted that the applicant, who was suffering
from an organic disorder of the central nervous system and psychopathy of a hysterical
type, as well as other conditions, had been receiving and continued to receive regular
outpatient treatment in the medical unit of the IK-4 correctional colony. On numerous
occasions he had been hospitalised in the facility’s medical unit and the Tula
Regional prison hospital. All prescribed medicines and treatments had been made
available to the applicant. Effective domestic remedies were available to the
applicant for his complaints of allegedly inadequate medical assistance, to
which he had recourse on many occasions. The Government noted, in particular,
that between September 2004 and October 2010 the applicant and his
representatives on twelve occasions brought relevant complaints to the
prosecutor. However, his complaints were found to be unsubstantiated. The
applicant also had recourse to domestic courts, which on one occasion, on
25 March 2009, obliged the administration of the IK-4 correctional colony
to send the applicant to the regional prison hospital for examination and
treatment. Following the court’s judgment, from 3 April to 10 April 2009 the
applicant underwent inpatient treatment in the regional prison hospital. In
view of the above finding of the domestic court it was open to the applicant to
claim compensation, which he never did.
B. The Court’s assessment
1. Article 3
(a) General principles
Referring
to the aforementioned general principles relating to the prohibition of
ill-treatment (see paragraphs 97-99 above),
the Court further reiterates that, although Article 3 cannot be
interpreted as laying down a general obligation to release a detainee on health
grounds save in exceptional cases (see
Papon v. France (no. 1) (dec.), no. 64666/01,
ECHR 2001-VI, and Priebke
v. Italy (dec.), no. 48799/99, 5 April 2001), a lack of
appropriate medical treatment in prison may in itself raise an issue under
Article 3, even if the applicant’s state of health does not require his
immediate release. The State must ensure that given the practical demands of
imprisonment, the health and well-being of a detainee are adequately secured
by, among other things, providing him with the requisite medical assistance
(see Kudła,
cited above, §§ 93-94;
Kalashnikov v. Russia,
no. 47095/99, §§ 95 and 100, ECHR 2002-VI; and Khudobin v. Russia,
no. 59696/00, § 96, ECHR 2006-XII (extracts)).
The “adequacy” of medical assistance remains
the most difficult element to determine. The Court insists that, in particular,
authorities must ensure that diagnosis and care in detention facilities,
including prison hospitals, are prompt and accurate, and that where
necessitated by the nature of a medical condition, supervision is regular and
involves a comprehensive therapeutic strategy aimed at ensuring the detainee’s
recovery or at least preventing his or her condition from worsening (see Pitalev
v. Russia, no. 34393/03, § 54, 30 July 2009,
and Valeriy Samoylov v. Russia, no. 57541/09, § 78, 24 January 2012). On the
whole, the Court reserves sufficient flexibility in defining the required
standard of health care, deciding it on a case-by-case basis. That standard
should be “compatible with the human dignity” of a detainee, but should also
take into account “the practical demands of imprisonment” (see Aleksanyan
v. Russia, no. 46468/06, § 140, 22 December 2008).
Where complaints are made of failure to provide
requisite medical assistance in detention, it is not essential for such a
failure to lead to any medical emergency or otherwise cause severe or prolonged
pain in order to find that a detainee has been subjected to treatment
incompatible with the guarantees of Article 3 (see Ashot
Harutyunyan v. Armenia, no. 34334/04, § 114, 15 June
2010). The fact that a detainee needed and requested such assistance but it was
unavailable to him may, in certain circumstances, suffice to reach a conclusion
that such treatment was in breach of that Article (ibid).
In its assessment the Court gives thorough
scrutiny to the question of compliance with recommendations and prescriptions
issued by medical professionals, in the light of specific allegations made by
the applicant and with due regard to the gravity of the medical condition. At
the same time, an unsubstantiated allegation of no or unsatisfactory medical
care is insufficient to disclose an issue under Article 3 of the Convention. A
credible complaint should normally include, among other things, sufficient
reference to the medical condition in question, related medical prescriptions
and recommendations which were sought, made or refused, as well as some
evidence - for instance, expert reports - capable of disclosing serious
failings in the applicant’s medical care (see, mutatis mutandis, Valeriy
Samoylov, cited above, §§ 79-80).
(b) Application of those
principles in the present case
It is undisputed between the parties that the
applicant’s medical conditions were rather serious and required a wide range of
treatment (see paragraphs 49-50 above). The Court’s analysis will, however,
focus only on the specific allegations made by the applicant in the context of
his complaint of allegedly inadequate medical assistance. These allegations concerned,
namely, (1) allegedly deficient provision of medicines, (2) lack of treatment
for the applicant’s deteriorating eyesight, and (3) lack of treatment for the
applicant’s broken foot (see paragraph 114 above).
As regards the first allegation, the Court
observes that the applicant failed to substantiate it, at the very least by making
reference to any specific medical condition and the related medical
prescription which had allegedly been unavailable to him in the correctional
colony.
As to the second allegation, the Court observes
that the applicant was regularly examined in connection with his ophthalmological
problems and underwent specialised treatment in the regional prison hospital
(see paragraph 51 above). The Court notes that on one occasion in 2009 it took
the applicant an application to the domestic court to obtain the necessitated
ophthalmological examination and treatment (see paragraphs 53-56 above). There
is no evidence in the case file, however, that on any other occasion the
applicant sought and was refused any specialised medical assistance in
connection with his eyesight problem. The applicant made no specific allegation
to the effect that the treatment provided to him in the regional prison
hospital had been in some way inadequate.
Regarding the third allegation, the Court
observes that in August 2009 the applicant was diagnosed with an oblique
fracture of the instep bone of the right foot. After being informed of the
diagnoses the applicant denied the injury and stated that he had hurt himself
in 2000. It follows from the applicant’s medical file that the applicant was
given crutches and prescribed bed rest (see paragraph 52 above). There is no
evidence in the material of the case file that the prescribed treatment had in
any way been inadequate or deficient, that the applicant ever requested any other
specific treatment in connection with this problem, or that such treatment was denied.
Regard being had to the foregoing and the material
in its possession, the Court finds no basis on which to conclude that the
medical assistance provided to the applicant in the context of the specific
complaints brought by him under Article 3 was inadequate. It follows that this
part of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Article 13
The Court reiterates that Article 13 of the
Convention guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form they might
happen to be secured in the domestic legal order, where there is an “arguable claim”
of a violation of a substantive Convention provision (see paragraph 109 above).
The Court notes that it has declared the
applicant’s complaint under Article 3 on account of allegedly inadequate
medical assistance inadmissible. Accordingly, the applicant did not have an “arguable claim” of a violation of a substantive
Convention provision and, therefore, Article 13 of the Convention is
inapplicable to this part of the application. It follows that the complaint
under Article 13 must also be rejected pursuant to Article 35 §§ 3 (a) and 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the hearing of
his case on 30 June 2008 had not been public and fair. In the latter
respect he alleged, in particular, a violation of his rights to equality of
arms and adversarial proceedings. The applicant relied on Article 6 of the
Convention which, in so far a relevant, reads as follows:
“In the determination of his
civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing ... by [a] ...
tribunal... Judgments shall be pronounced publicly but the press and public may
be excluded from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the interests of
juveniles or the protection of the private life of the parties so require, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.”
A. The parties’ submissions
1. The applicant
The applicant submitted
that the hearing of his case on 30 June 2008 had been carried out on the premises
of the correctional colony – a closed controlled-access facility. The court
formally announced open court session, but in reality the hearing was not open
to the public as it could not be accessed without permission of the head of the
correctional colony. Furthermore, in accordance with the internal rules of
correctional facilities the hearing could not be accessed if those wishing to
attend it brought in any communication, recording or data storage devices. In
such circumstances, the court session of 30 June 2008 was not open and public
as required by Article 6 § 1 of the Convention.
The applicant further submitted that the
proceedings in question had not complied with the requirement of fairness
enshrined in Article 6 § 1. He claimed, in particular, that he had
not enjoyed equality of arms with the other party, and the adversarial nature
of the proceedings as his representatives were denied access to the hearing and
the hearing took place only in the presence of the applicant’s adversary.
2. The Government
Referring to the domestic
law, the Government submitted at the outset that the proceedings over the
lawfulness of the applicant’s placement in the PKT punishment cell on
14 March 2008 had been civil in nature. They noted in this connection the
Court’s case-law to the effect that the requirements inherent in the concept of
a “fair hearing” are not necessarily the same in cases concerning determination
of civil rights and obligations as they are in cases concerning the
determination of a criminal charge, and that the Contracting States have
greater latitude when dealing with civil cases.
The
Government further submitted that the hearing of the applicant’s case on the premises
of the correctional colony had been public. All persons wishing to take part in
it, including the applicant’s representative and the expert from the human
rights organisation, were afforded an opportunity to appear at the off-site
court session on condition of compliance with certain rules connected with the
special status of the applicant as a convicted person serving his sentence in a
penal facility.
The Government further argued that the District
Court had provided the applicant with the opportunity to attend the hearing of
his case by holding an off-site court hearing in the correctional colony where
he was serving his sentence. The applicant’s representative was also duly
notified about the time and the place of the off-site hearing and issued with a
pass enabling him to enter the territory of the colony. Thereby the applicant
was afforded an opportunity to present his case effectively before the court
and enjoy equality of arms with the opposing side. The applicant’s representative,
however, chose not to enter the colony’s territory, by refusing to leave his
mobile phone, dictaphone, camera and laptop at the entrance. The District Court
examined the reasons for the absence of the applicant’s representative and the
applicant’s refusal to attend without his representative. The court also
examined the request lodged by the applicant’s representative to hold the
hearing at the court-house and dismissed it on the ground that the domestic law
did not provide for the possibility of transferring inmates so they could take part
in the hearing of their civil cases. The applicant made use of an effective
remedy, the appeal procedure against the decision of the District Court of
30 June 2008. In such circumstances the hearing of the applicant’s case
satisfied the requirement of fairness set out in Article 6 § 1
of the Convention.
B. The Court’s assessment
1. Admissibility
Having regard to its
previous case-law, the Court considers that Article 6 of the Convention is
applicable under its civil head to the applicant’s complaint about the lawfulness
of the disciplinary sanction imposed on him in the correctional colony in the form
of his placement in the PKT punishment cell (see Ganci v. Italy, no. 41576/98,
§§ 20-26, ECHR 2003‑XI; Musumeci v. Italy, no. 33695/96,
§ 36, 11 January 2005; Gülmez v. Turkey, no. 16330/02, §§ 24-31,
20 May 2008; and Enea v. Italy [GC], no. 74912/01, §§ 97-107,
ECHR 2009). Indeed, this was not disputed before the Court.
Since this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention and no
other ground for declaring it inadmissible has been established, the Court
declares it admissible.
2. Merits
(a) General principles
(i) Public hearing
The Court reiterates that the holding of court
hearings in public constitutes a fundamental principle enshrined in Article 6 §
1. This public character protects litigants against the administration of
justice in secret with no public scrutiny; it is also one of the means whereby
confidence in the courts can be maintained. By rendering the administration of
justice transparent, publicity contributes to the achievement of the aim of
Article 6 § 1, namely a fair trial, the guarantee of which is
one of the fundamental principles of any democratic society, within the meaning
of the Convention (see Axen v. Germany, 8 December 1983, § 25,
Series A no. 72; Szücs v. Austria, 24 November 1997, § 42, Reports
of Judgments and Decisions 1997‑VII; Gülmez, cited
above, § 34; and Juričić v. Croatia, no. 58222/09, § 84, 26 July 2011).
Article 6 § 1 does not, however, prohibit
courts from deciding, in the light of the special features of the case
submitted to them, to derogate from this principle: in accordance with the
actual wording of this provision, “... the press and public may be excluded
from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice”; holding proceedings,
whether wholly or partly, in
camera, must be strictly required by the circumstances of the case
(see, most recently, Welke and Białek v. Poland, no. 15924/05, § 74, 1 March 2011, with further
references).
(ii) Fair hearing:
adversarial proceedings and equality of arms
. 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 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).
. Article 6
of the Convention does not expressly provide for a right to a hearing in one’s
presence; rather, it is implicit in the more general notion of a fair trial
that a criminal trial should take place in the presence of the accused (see,
for example, Colozza
v. Italy, 12 February 1985, § 27, Series A no. 89).
However, in respect of non-criminal matters there is no absolute right to
be present at one’s trial, except in respect of a limited category of cases,
such as those where the character and lifestyle of the person concerned is
directly relevant to the subject matter of the case, or where the decision
involves the person’s conduct (see, for example, Kabwe
and Chungu v. the United Kingdom (dec.), nos. 29647/08
and 33269/08, 2 February 2010).
(b) Application of those principles in the present
case
Turning to the circumstances of the present
case, the Court notes at the outset that the provisions of the domestic law did
not provide for the possibility for a convicted person to be transferred from a
correctional institution to a courthouse to take part in the examination of a
civil case (see paragraph 79 above). In this connection the Court points out
that it has previously found a violation of Article 6 § 1 of the Convention in
a number of Russian cases where the Russian courts refused leave to appear in
court to prisoners who had wished to make oral submissions on their civil
claims (largely based on their personal experience), having found that the
applicants had not been afforded adequate opportunities to effectively argue
their civil cases (see Kovalev v. Russia, no. 78145/01,
§§ 35-38, 10 May 2007; Khuzhin and Others v. Russia, no. 13470/02,
§§ 106-109, 23 October 2008; Shilbergs
v. Russia, no. 20075/03, §§ 107-113, 17 December
2009; Artyomov
v. Russia, no. 14146/02, §§ 204-208, 27 May 2010 and Roman
Karasev v. Russia, no. 30251/03, §§ 65-70,
25 November 2010. In those cases the
Court pointed out the failure of the domestic courts to consider other
possibilities for securing the applicants’ participation in the hearing of
their civil cases, one of which being holding a hearing at the location
where the convicted person was serving the sentence (see also paragraph 87
above).
The Court notes that, in contrast to the
above-cited cases, in the present case the domestic court did consider another
possibility for securing the applicant’s personal attendance at the hearing of
his civil case and held an off-site court session at the colony where the
applicant was serving his sentence.
The Court takes note of the Government’s
argument to the effect that all persons wishing to take part in the hearing of
the applicant’s case were afforded an opportunity to attend the off-site court
session on condition of compliance with certain rules connected with the
special status of the applicant as a convicted person serving his sentence in a
penal facility and that, therefore, the hearing had not been deprived of its
public character (see paragraph 131 above).
The Court is aware, however, of the
practicalities of holding a hearing on the premises of a correctional colony, a
closed controlled-access facility. The general public and the media may not be
informed of the hearing, which would most probably take place on premises which
do not provide sufficient room for accommodating any potential spectators, who
would in any case have to undergo strict identity and security checks and
comply with other access requirements (see, for example, paragraph 86 above).
All these factors cannot be said to have no implication on the public character
of the proceedings. At the same time, the Court is of the opinion that for
practical reasons one cannot expect the hearing of his or her civil case in an
off-site court session taking place in a prison to have exactly the same public
exposure as it would have in an ordinary courtroom.
The Court considers therefore that any
detrimental effect which the practicalities of holding the proceedings at issue
on the premises of the correctional colony might have had on the public
character of the proceedings was counterbalanced by the applicant’s being
afforded an adequate opportunity to argue his civil case effectively before the
court by, above all, his personal participation, which otherwise would not have
been possible.
The Court will further examine whether the
hearing of the applicant’s case on 30 June 2008 complied with the
principle of adversarial proceedings and equality of arms enshrined in Article
6 § 1 of the Convention.
The Court notes that the applicant appointed a
legal representative to secure his defence at the hearing of his civil case on
30 June 2008. The latter, however, refused to abide by the internal
regulations of the correctional institutions and leave his dictaphone, mobile
phone, camera and laptop in deposit so as to be given access to the colony
grounds. The Court further notes that, left without the benefit of legal
advice, the applicant refused to participate in the hearing as a sign of
protest. As a result, the hearing took place only in the presence of the
opposite party to the proceedings.
The Court observes that the provisions of the
domestic law in force at the material time prohibited any short-term visitors
to inmates from carrying any items (including cameras, photo materials, movie
cameras, video and audio equipment, communication devices, and so on) into
correctional institutions. Such items were to be left with a junior inspector responsible
for the meeting until the end of the visit (see paragraph 86 above). The Court
considers that those restrictions cannot be said to have been insurmountable,
and were certainly not such as to strip the applicant of the opportunity of
receiving high quality legal advice. It finds therefore that the applicant’s
lawyer should bear the responsibility for not respecting the colony’s internal
rules and leaving the applicant to represent himself.
Regarding the applicant’s absence, the Court
observes that by holding an off-site court session on the premises of the
correctional colony where the applicant was serving his sentence the domestic
court afforded him a genuine opportunity to participate in the hearing on equal
grounds with his opponent. Having learnt, however, that his lawyer had not been
let in, the applicant explicitly and unequivocally waived his right to take
part in the proceedings. The Court reiterates in this connection that neither
the letter nor the spirit of Article 6 of the Convention prevents a person from
waiving of his own free will, either expressly or tacitly, entitlement to the
guarantees of a fair trial (see, among other authorities, Sibgatullin v.
Russia, no. 32165/02, § 46, 23 April 2009).
In such circumstances, the domestic courts
cannot be blamed for the fact that that the hearing of the applicant’s case on 30 June
2008 took place in the absence of the applicant and his representative.
There has therefore been no violation of
Article 6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant raised further complaints under Articles 3 and 6 of the
Convention about his imminent transfer to a prison and the alleged unfairness
of the relevant proceedings.
The Court has examined the above complaints, as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
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 45,000 euros (EUR) in
respect of non‑pecuniary damage.
The Government considered that this claim was
excessive and that, if the Court were to find a violation, such a finding would
constitute adequate just satisfaction.
Having regard to the nature of the violations
found and making an assessment on an equitable basis, the Court awards the
applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable thereon.
B. Costs and
expenses
The applicant also claimed EUR 2,500 for costs
and expenses incurred before the domestic courts and the Court.
The Government quoted the Court’s case-law to
the effect that the applicants have to prove that the costs and expenses
claimed were actually and necessarily incurred and were reasonable as to
quantum.
The Court notes that the applicant was granted
EUR 850 in legal aid for his representation by Mr V. Shukhardin.
Having regard to the material in its possession, the Court finds that the
applicant did not justify having incurred any expenses exceeding that amount.
Accordingly, it makes no award in respect of costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the
conditions of the applicant’s solitary confinement in PKT punishment cells from
December 2007 to December 2010 and lack of an effective domestic remedy in this
respect, and the complaint about the lack of a public and fair hearing of his
civil case on 30 June 2008 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the applicant’s repeated solitary
confinement in PKT punishment cells of the correctional colony;
3. Holds that there has been no violation of
Article 13 of the Convention, in conjunction with Article 3, as to the absence
of an effective domestic remedy with regard to the applicant’s complaint about
his solitary confinement in correctional colony’s PKT punishment cells;
4. Holds that there has been no violation of
Article 6 of the Convention on account of lack of a public and fair hearing of
the applicant’s civil case on 30 June 2008;
5. 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 15,000 (fifteen
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 at 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
