REZNIK AND GUZEYEVA v. RUSSIA - 59443/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 803 (04 October 2016)

In the case of Reznik and Guzeyeva v. Russia,

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

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

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

PROCEDURE

1. The case originated in two applications (nos. 59443/12 and 59502/12) 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 two Russian nationals, Mr Sergey Aleksandrovich Reznik and Ms Yuliya Vladilenovna Guzeyeva (“the applicants”), on 4 September 2012.

2. The applicants were represented by Mr S.A. Khodyrev, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that the conditions of their pre-trial detention had been inhuman and that the authorities had unlawfully retained their property.

4. On 13 May 2015 the complaints concerning the conditions of detention and the control of the use of property were communicated to the Government and the remaining parts of the applications were declared inadmissible.

THE FACTS

5. The applicants were born in 1967 and 1970 respectively and live in Rostov-on-Don.

A. Conditions of the applicants’ detention

6. On 26 December 2006 the applicants were arrested and placed in a detention centre operated by the Rostov-on-Don police.

7. On 1 January 2007 and 31 December 2006 respectively, the applicants were transferred to remand prison no. IZ-61/1 in Rostov-on-Don, where they were held until 23 March 2012.

8. The first applicant, Mr Reznik, submitted that between 1 January and 15 May 2007 he had been held in cells 117 and 118 of the remand prison, which measured 6 square metres and had six sleeping places but accommodated up to nine inmates. In cells 42, 44 and 45, where he stayed from 15 May until November 2007, the surface area was approximately 11 square metres for twelve sleeping places and up to eleven inmates. For the next few years he was in cell 111, the largest of all the cells he was held in at 14 square metres, with up to five people sharing. On some occasions he and his cellmates had to take turns to sleep. The first applicant produced written statements by Mr F., Mr K. and Mr S., with whom he had been detained in the same cells in 2007-2009, 2009, and 2006-2010, respectively. The statements corroborated his account of the conditions of detention.

9. The Government did not contest the fact that the applicant’s former cellmates had been held in the same remand prison as the applicant or the veracity of their statements.

10. The second applicant, Ms Guzeyeva, submitted that apart from the first month she had been detained in cell 184, which measured 25 square metres, had eight sleeping places and held between ten and twenty-six inmates. Because of a lack of sleeping places she had to take it in turn to sleep, not only in bed but also on the floor.

11. The Government provided a description of the applicants’ conditions of detention, relying on certificates issued in June 2015 by the director of the remand prison, photographs of the cells, prisoner transfer logs (суточная ведомость учёта лиц, временно выбывших из следственного изолятора) and registration logs (журнал количественной проверки подозреваемых, обвиняемых и осуждённых). They submitted that the number of prisoners in the cells where the applicants had been held had not exceeded the occupancy limit.

12. The prisoner transfer log shows that the applicants were detained in the following cells:

Mr Reznik
Cell	Date
117	21 February 2007
42	16 June; 16 and 23 September, 1, 7; 13 and 14 October; 11, 12, 18 and 26 November 2008; 1, 15 and 22 September, 6 and 27 October, 10 and 17 November 2009
Ms Guzeyeva
Cell	Date
184	21 February, 14 May and 14 August 2007; 14 March and 16 June 2008

13. The prison director’s certificates specify that cell 44 “was equipped with three sleeping places” and measured 14.3 square metres. They also indicate, in particular, that the applicants were held in the following cells:

Mr Reznik
Cell	Surface, sq. m	Inmates	Period
118	8	2	14 January to 14 May 2007
44	14.3	3	1 June to 22 December 2008
111	15.6	3	16 August 2009 to 8 May 2010
Ms Guzeyeva
Cell	Surface, sq. m	Inmates	Period
192	32.1	8	31 December 2006 to 20 June 2008

14. The registration logs did not contain the names of prisoners but listed numbers that could be interpreted as the cell number, its maximum occupancy and the actual number of prisoners on a given date. All the cell numbers and maximum occupancy figures were pre-printed, except for the maximum occupancy figures of the applicants’ cells, which were written by hand. For example, in the log of 9 June 2008, the maximum capacity was handwritten for cells 42, 44, 45, 111, 117, and 118 (see Mr Reznik’s cell numbers above); and for 184 and 192 (Ms Guzeyeva’s cells), and matched the actual number of prisoners in those cells.

15. The Government also provided undated photographs of cells 42, 44, 45, 111, 117, 118, and 192, which were taken from the corridor through the door, which was ajar. One of the photographs shows cell 44, with the list of cell equipment on the door indicating that it contains “six two-tier beds”. The inside of the cell is not visible. The applicants denied that the photographs showed the cells in which they had been held because those cells had not had the vaulted ceilings that were visible in the photographs.

B. Forfeiture of the applicants’ money

16. On 14 December 2010 the Kirovskiy District Court of Rostov-on-Don convicted the applicants and their co-defendants of illegal banking operations and forgery, and sentenced them to six years’ imprisonment and a fine. The court ordered the forfeiture of the applicants’ money as “the proceeds of crime”.

17. On 13 March 2012 the Rostov Regional Court amended the judgment on appeal, reducing the sentences and revoking the forfeiture order on the grounds that the relevant provisions of criminal law had been enacted after the commission of the crimes.

18. The applicants lodged several claims for the return of their property. On 21 March 2013 and 10 February 2014 the Kirovskiy District Court ordered the return of part of the money to the applicants, which they received shortly thereafter. The court considered that the rest of the money was to be forfeited to the State.

19. The applicants appealed and by a final decision of 16 December 2015 the Rostov Regional Court ordered the rest of the applicants’ property to be returned to them, finding that the District Court’s forfeiture order had been unlawful and procedurally defective.

20. The applicants recovered the remaining amounts on 20 January and 18 February 2016.

THE LAW

I. JOINDER OF THE APPLICATIONS

21. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. The applicants complained that the conditions of their detention in the remand prison had been in breach of Article 3 of the Convention, which reads as follows:

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

23. The Government disagreed. In particular, they submitted that the applicants had been detained in satisfactory sanitary conditions. They pointed out that the number of inmates in the cells had not exceeded the occupancy limit.

24. The applicants submitted that the handwritten entries in the registration logs concerning the cells in which they had been held indicated that the register had been tampered with. The photograph of cell 44 had shown six sleeping places on the door, but the register had contained a handwritten entry of three. They also referred to discrepancies with regard to their cell numbers between the registration log and the prisoner transfer log.

A. Admissibility

25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

26. An outline of the Court’s case-law under Article 3 of the Convention relating to conditions of detention can be found in a number of judgments concerning Russia (see, in particular, Idalov v. Russia [GC], no. 5826/03, §§ 91-102, 22 May 2012, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 121-66, 10 January 2012).

27. The Court observes that the parties disagreed as to the specific conditions of the applicants’ detention. It reiterates that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio because in such instances the respondent Government alone have access to information capable of corroborating or refuting those allegations (see Ananyev and Others, cited above, § 123).

28. The applicants have made a convincing case of overcrowding in facility IZ-61/1, listing the cells in which they were held, their size, the number of sleeping places and the actual number of detainees. The Government, in defence, submitted a number of documents, including certificates issued by the director of facility IZ-61/1, the registration logs, the prisoner transfer logs and photographs.

29. However, the Court notes at the outset that the registration logs did not contain prisoners’ names. The information contained in the prisoner transfer logs about the cells where the applicants were held was different from that given in the prison director’s certificates. Furthermore, the certificates were issued three years after the applicants’ detention had ended and did not refer to any original data used in their preparation. The Court has repeatedly declined to accept the validity of similar certificates on the grounds that they could not be viewed as sufficiently reliable, given the lapse of time involved and the absence of any supporting documentary evidence (see, among other authorities, Idalov, cited above, §§ 99-100, and Zentsov and Others v. Russia, no. 35297/05, § 43, 23 October 2012). The Court cannot hold otherwise in the present case.

30. The Court also notes that the Government preferred to submit copies of certain pages of the registration logs, covering only forty-eight days out of the more than five years and two months that the applicants had spent in the remand prison. It finds such incomplete and selective evidence unconvincing (see, for similar reasoning, Kokoshkina v. Russia, no. 2052/08, § 60, 28 May 2009, and Vyatkin v. Russia, no. 18813/06, § 40, 11 April 2013). Furthermore the figures showing the maximum occupancy in the applicants’ cells, cells 42, 44, 45, 111, 117, 118, 184 and 192, were written by hand on all the pages of the register which the Government submitted and matched the actual number of prisoners in those cells, whereas, in all the other cells, the maximum capacity was pre-printed and more often was not the same as the actual number of inmates. The Government did not indicate at what time and for what purpose the information in the register had been altered. The Court reiterates that alterations in a prison population register, without any explanations as to their origin, reason and timing, has made the information contained in it unreliable (see Glotov v. Russia, no. 41558/05, § 25, 10 May 2012; Manulin v. Russia, no. 26676/06, § 43, 11 April 2013; and Klyukin v. Russia, no. 54996/07, § 59, 17 October 2013).

31. Furthermore, the Government did not provide any explanation why the director’s certificate gave the number of sleeping places in cell 44 as three, whereas a photograph of the cell door referred to six two-tier beds.

32. Having regard to the above considerations, the Court considers that the Government have not substantiated their argument that the number of inmates in the applicants’ cells did not exceed the design capacity. Nor did the Government comment on the statements made by the first applicant’s cellmates in support of his allegations or deny that they were held in the same facility in the relevant period.

33. The Court will thus examine the issue concerning the number of inmates in the cells on the basis of the applicants’ submissions, confirmed by the first applicant’s former cellmates Mr F., Mr K. and Mr S.

34. The applicants submitted that they had less than 3 square metres of personal space per cell. The Court has frequently found a violation of Article 3 of the Convention on account of an extreme lack of personal space for detainees (see, for example, Ananyev and Others, cited above, §§ 143 et seq.; Bakhmutskiy v. Russia, no. 36932/02, §§ 88-97, 25 June 2009, which also concerned the conditions of detention in remand prison no. IZ-61/1; and Lăutaru v. Romania, no. 13099/04, §§ 99-104, 18 October 2011).

35. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicants’ detention in remand prison no. IZ-61/1 in Rostov-on-Don.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

36. The applicants complained that the conditions of their detention in the police detention centre between 26 and 31 December 2006 or 1 January 2007 had been in breach of Article 3 of the Convention.

37. The Court notes that after their detention by the police the applicants were transferred to a remand prison. According to the Court’s case-law, a transfer to a penal facility of a different type generally requires the submission of a separate complaint about the conditions of detention in the previous facility within six months of such a transfer (see Ananyev and Others, cited above, § 76). In the present case, the applicants lodged their complaint more than five years after their transfer from police custody to the remand prison. It follows that this part of the applications has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

38. Lastly, the applicants complained under Article 1 of Protocol No. 1 to the Convention that their money had not been returned to them in full for almost four years. The Court reiterates that an applicant may lose his victim status if two conditions are met: first, the authorities acknowledge the alleged violations either expressly or in substance and, second, they afford redress (see Guisset v. France, no. 33933/96, §§ 66-67, ECHR 2000-IX). The Court notes that the Rostov Regional Court’s judgment of 16 December 2015 can be seen as an acknowledgment of a violation of the applicants’ property rights, and that the eventual return of their property can be considered appropriate redress. As to their argument concerning a loss of profit, it was open to them to lodge a claim for compensation under the tort provisions of the Civil Code (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 101-05, ECHR 2015), which they failed to do.

39. In those circumstances, the Court holds that the applicants can no longer claim to be victims of an alleged violation of Convention within the meaning of Article 34 of the Convention. It follows that the complaint is incompatible ratione personae and must be rejected in accordance with Articles 34 and 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. Each applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

42. The Government left the issue to the discretion of the Court.

43. Having regard to the violations it has found, the Court considers that the applicants must have suffered a certain amount of distress and frustration. However, the amounts claimed appear to be excessive. Making its assessment on an equitable basis, it awards each applicant EUR 17,750 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

44. The applicants also claimed EUR 1,200 and EUR 1,227, respectively, for the costs and expenses incurred before the Court, comprising legal, postal and translation fees.

45. The Government did not comment.

46. The Court notes that the applicants did not submit any documents corroborating the expenses. Therefore, the Court rejects the claim.

C. Default interest

47. 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. Decides to join the applications;

2. Declares the complaint concerning the conditions of detention in the remand prison admissible and the remainder inadmissible;

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

4. Holds

(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 17,750 (seventeen thousand seven hundred and fifty euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on those amounts;

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

5. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President

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