MAKOVOZ v. RUSSIA - 10011/10 - Committee Judgment [2014] ECHR 1097 (16 October 2014)

In the case of Makovoz v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Julia Laffranque,
          Dmitry Dedov, judges,
and Søren Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 23 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 10011/10) 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 Oleg Yuryevich Makovoz (“the applicant”), on 1 February 2010.

2. The applicant was represented by Ms T. Klykova, and subsequently by Ms M. Belinskaya, lawyers practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 13 April 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1968 and lived in St Petersburg before the events of the case.

A. The criminal proceedings

5. In 2004 several criminal cases were opened against the applicant on suspicion of kidnapping, extortion and planning an assassination.

6. By final judgments of 15 March 2007 and 8 October 2009, the Supreme Court of Russia found the applicant guilty as charged and sentenced him to a total of twenty-three years’ imprisonment.

B. The conditions of the applicant’s detention between 15 January and 18 February 2010

7. Starting from 10 March 2004, the date of his arrest, the applicant was detained in various custodial facilities in connection with the criminal proceedings against him. In particular, on 15 January 2010 the applicant was transported from a prison hospital to remand prison IZ-47/1 of St Petersburg, where he stayed until 18 February 2010. According to the applicant, the facility was overcrowded. Thus, cell 456 measuring 8 sq. m accommodated up to three inmates. The applicant further claimed that he had been denied the necessary medical treatment there. In support of his allegations, the applicant submitted several photographs of his cell.

II. PROCEDURE BEFORE THE COURT

8. On 1 February 2010 Ms Klykova, the applicant’s representative at that time, lodged an application form complaining about the criminal proceedings against the applicant. Attached was a power of attorney, dated 12 January 2010 and signed by the applicant, which read as follows:

“Power of Attorney

[In accordance with] Rule 36 of the Rules of Court

I, Mr Makovoz ... authorise Ms Klykova ... to represent me before the European Court of Human Rights ... in connection with my complaint against the Russian Federation, lodged under Article 34 of the Convention.”

9. In letter of 19 April 2010, Ms Klykova informed the Court that between 15 January and the end of February 2010 the applicant had been held in the St Petersburg remand prison and described the conditions of his detention there. She also submitted that she had lost contact with the applicant after he had left the prison on an unspecified date in late February 2010.

10. In letter of 26 October 2012, the applicant further complained about the conditions of his detention in various custodial facilities between 10 March 2004 and 22 December 2011.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

11. The applicant complained that the conditions of his detention in remand prison IZ-47/1 of St Petersburg were inhuman and degrading in violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The Government’s objection that the application was not validly lodged on the applicant’s behalf

12. The Government submitted that the complaint had been lodged by Ms Klykova during the period in which she had no contact with the applicant. That meant, in their view, that she raised the complaint on her own initiative rather than on the applicant’s instruction, and it cannot be considered to be properly lodged on the applicant’s behalf.

13. The applicant disagreed, submitting that he had duly authorised Ms Klykova to bring any complaints on his behalf.

14. The Court reiterates that it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 of the Convention on whose behalf they purport to act, as a rule by presenting a power of attorney or written authority to act under Rule 45 § 3 of the Rules of Court (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).

15. The Court observes that such authority was presented. It further observes that the Government did not dispute its authenticity or that it was valid as of 19 April 2010, the date of introduction of the communicated complaint under Article 3.

16. The Court notes that the applicant entrusted to Ms Klykova his general representation before the Court. Indeed, nothing in the text of the authority confined her capacity to act on his behalf to particular Articles of the Convention or to a specific set of facts (see paragraph 8 above).

17. The Court is therefore satisfied that the complaint was validly introduced and that Ms Klykova was duly authorised to represent the applicant. The Government’s objection on this point must be dismissed.

B. Admissibility

18. The Court notes that the complaint about the conditions of the applicant’s detention in the St Petersburg remand prison from 15 January to 18 February 2010 was introduced on 19 April 2010, that is within six months of the alleged violation. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

19. As to the complaints regarding the other periods of the applicant’s detention between 10 March 2004 and 22 December 2011, the Court observes that they were first introduced on 26 October 2012 (see paragraph 10 above), outside the time-limit set by Article 35 § 1 of the Convention and declares them inadmissible pursuant to Article 35 § 4.

C. Merits

20. The Government did not submit any observations on the merits of the case.

21. The applicant maintained his complaint.

22. Having regard to the applicant’s factual allegations, which were undisputed by the Government, and to the evidence he had submitted to the Court (see paragraph 7 above) and recalling the structural nature of the problem of the conditions of pre-trial detention in Russian custodial facilities (see the pilot judgment Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012), the Court considers that the conditions of the applicant’s detention in remand prison IZ-47/1 of St Petersburg amounted to inhuman and degrading treatment.

23. There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 15 January to 18 February 2010.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24. The applicant further complained about the alleged lack of adequate medical assistance in the remand prison and various breaches of his Convention rights during the criminal proceedings against him. 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 considers that these grievances do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25. 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

26. The applicant claimed 47,000 euros (EUR) in respect of non-pecuniary damage.

27. The Government considered that sum to be excessive.

28. The Court, having regard to its case-law in similar cases, awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

29. The applicant also claimed EUR 12,500 for the costs and expenses incurred before the Court.

30. The Government submitted that the above sum was excessive and should be decreased as the case was not complex.

31. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court.

C. Default interest

32. 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 complaint concerning the conditions of the applicant’s detention in remand prison IZ-47/1 of St Petersburg between 15 January and 18 February 2010 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date of the judgment, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen Khanlar Hajiyev
Acting Deputy Registrar President

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