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FIRST
SECTION
CASE OF BYCHKOV v. RUSSIA
(Application
no. 39420/03)
JUDGMENT
STRASBOURG
5 March
2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Bychkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39420/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Pavel Viktorovich
Bychkov (“the applicant”), on 21 October 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant complained, in particular, that the conditions of his
pre-trial detention had been appalling.
- On
4 January 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975. He is currently serving a prison
sentence.
A. Criminal proceedings against the applicant
- On
31 May 2000 the applicant, a tax police officer, was arrested. He was
later remanded in custody on suspicion of banditry, robbery and abuse
of power. His detention was subsequently extended on several
occasions.
- The
proceedings against the applicant and co-accused were surrounded by
an extensive media campaign. In particular, on 6 June 2000 the
Segodnia daily newspaper published an article which contained
a detailed description by a journalist of the charges against the
applicant and co-accused. According to the applicant's submissions,
similar statements were repeated in other Moscow newspapers
(«Московский
Комсомолец»)
in June 2000. The applicant asserted that the prosecutor had included
these articles in the case file as evidence against him.
- In
April 2001 the pre-trial investigation was completed and the case was
referred to the Moscow City Court.
- On
8 May 2002 the Moscow City Court convicted the applicant as charged
and sentenced him to thirteen years' imprisonment. The court relied
on statements of many witnesses, including co-defendants and victims,
and forensic expert reports.
- On
1 October 2002 the Supreme Court of Russia, acting on appeal, quashed
the judgment due to procedural defects and remitted the case for a
fresh examination.
- On
19 February 2003 the Moscow City Court convicted the applicant as
charged and sentenced him to twelve years and six months'
imprisonment. During the trial the defendants, relying on their right
to silence, refused to testify. The court based its findings on
numerous witnesses' depositions and submissions by the defendants
during the pre-trial investigation.
- According
to the applicant, on 9 June 2003 another Moscow newspaper
(«Российский
Курьер»)
published an article discussing the applicant's criminal case.
- On
29 July 2003 the Supreme Court of Russia, acting on appeal, upheld
the judgment with minor changes.
B. Conditions of detention
- From
5 June 2000 to 9 September 2003 the applicant was detained in
facilities nos. IZ-77/2 and IZ-77/3 in Moscow.
1. Number of inmates per cell
(a) Facility no. IZ-77/2
- According to certificates issued on 15 February 2006
by the acting facility director, and produced by the Government, the
applicant was kept in eight cells. From 5 June to 27 October 2000 he
was detained in cells nos. 314, 501, 146 and 218. According to the
Government, the information on the number of inmates during the above
period was not available as the documents had been destroyed.
-
Further, the Government submitted that from 27 October 2000 to
22 January 2002 there had been fifteen detainees on average
together with the applicant in cell no. 501, which was designed for
thirty-eight persons. From 22 January to 12 February 2002 there
were four detainees on average in cell no. 27, which was designed for
six persons. From 12 February to 17 April 2002 there were ten
detainees on average in cell no. 51, which was designed for eight
persons. From 17 April to 17 May 2002 there were twenty-five
detainees on average in cell no. 140, which was designed for
twenty-two persons. There were fifty-one detainees on average in the
same cell from 28 October 2002 to 16 February 2003. From 17 to
30 May 2002 there were two detainees on average in cell no. 37, which
was designed for six persons. From 16 February to 28 June 2003 there
were twenty-eight detainees on average in cell no. 146, which was
designed for twenty persons. Finally, from 28 June to 14 August 2003
there were twenty detainees in cell no. 2, which was designed for
twenty-two persons.
- The
Government supported their assertions with copies of extracts from
registration logs showing the number of detainees on 1 December 2001,
12 and 13 February, 1 and 2 April, 14 and 15 April, 18 and 19 May, 30
and 31 October 2002, 12 and 13 June, and 2 and 3 August 2003. The
registration logs did not include the detainees' names. The
Government did not provide the Court with information on the cell
measurements.
- The
applicant contested this information in part. He stated that from 9
to 19 July 2000 he had shared cell no. 146, which measured 48 sq. m,
with up to seventy detainees. There were thirty-eight detainees in
the same cell as the applicant from 15 February to 31 March 2002 and
from 15 February 2003 to 16 August 2003, and they had to sleep
in shifts. Further, according to the applicant, cell no. 501
measuring 36 sq. m, in which he was kept from 19 July to 24 August
2000 and from 24 September 2000 to 18 January 2001, housed
thirty-eight detainees. From 4 October 2002 to 15 February 2003 the
applicant was kept in cell no. 140, measuring 48 sq. m, with at least
thirty-seven other detainees.
(b) Facility no. IZ-77/3
- From
30 May to 29 October 2002 and from 14 August to 9 September 2003
the applicant was kept in detention facility no. IZ-77/3 in Moscow,
in cells nos. 524 and 523 respectively. According to the Government,
in cell no. 524 he was kept at different periods with twenty-one to
thirty-four other detainees; and in cell no. 523 with twenty-one to
twenty-four detainees.
- The
applicant stated that both cells measured 30 sq. m and there were
thirty persons there with him.
2. Sanitary conditions, installations and temperature
- The
Government, relying on the information provided by the Federal
Service for the Execution of Sentences, submitted, with respect to
both facilities, that the cells had been ventilated naturally through
the windows. Each cell also had a ventilation shaft. The cells had
natural light and the metal shutters (“eyelashes”) were
removed on 25 November 2002 following a relevant directive of the
Ministry of Justice. Furthermore there were twenty-four-hour
artificial lights, as well as security lights. The partition around
the toilet offered sufficient privacy.
- The
applicant disagreed with the Government's description and submitted
that the sanitary conditions had been unsatisfactory. The windows of
the cells let almost no daylight in as they were covered with
“eyelashes”, and due to insufficient daylight the
applicant's eyesight deteriorated significantly during the period of
detention. Toilet facilities were not separated from the living area,
the cells had no ventilation and the air was always stuffy. Smoking
was not restricted in the cells, which exposed the applicant, who is
a non-smoker, to heavy tobacco smoke and made him feel sick. The
cells were infected with bed-bugs and lice but the administration did
not provide any insecticides.
- The
applicant produced written statements by Mr M., who had been detained
in cell no. 501 in detention facility IZ-77/2 in 2000-2002, and Mr V.
who had been detained together with the applicant from 17 November
2002 to 15 February 2003 in cell no. 140 and from 15 February to
16 August 2003 in cell no. 146 in detention facility IZ-77/2.
They confirmed the applicant's account of the conditions of detention
there, including information on cell measurements, number of
detainees and sanitary conditions.
II. RELEVANT DOMESTIC LAW
- Section
23 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15
July 1995) provides that detainees should be kept in conditions which
satisfy sanitary and hygienic requirements. They should be provided
with an individual sleeping place and given bedding, tableware and
toiletries. Each inmate should have no less than four square metres
of personal space in his or her cell. According to section 24,
administration of detention facilities shall meet the sanitary and
hygienic requirements which secure the detainees' health.
III. RELEVANT INTERNATIONAL DOCUMENTS
- Relevant
international documents and reports concerning the conditions in
Russian penitentiary establishments can be found in the judgment of
25 October 2005 in the case of Fedotov v. Russia,
(no. 5140/02, §§ 54-55), judgment of 10 May 2007
in the case of Benediktov v. Russia, (no. 106/02, §
21) and judgment of 8 November 2005 in the case of Khudoyorov v.
Russia (no. 6847/02, §§ 97-98).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION
- The
applicant complained that the conditions of his detention in
facilities nos. IZ-77/2 and IZ-77/3 of Moscow had been inhuman and
degrading in breach of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government stated that the application should be rejected for being
out of time. They considered that the applicant had first raised this
complaint on 19 August 2004, according to the Court's stamp on the
application form. The Government also argued that the applicant had
not exhausted the domestic remedies available to him. In particular,
he had not lodged any complaint about his conditions of detention.
- The
Government further submitted that detention conditions in facilities
nos. IZ-77/2 and IZ-77/3 had been adequate. They relied on
certificates issued by the Federal Service for the Execution of
Sentences confirming that the applicant had been provided with an
individual sleeping place and that the sanitary, hygienic and
temperature conditions had been satisfactory. According to them, the
mere fact that the applicant had been detained in overcrowded cells
cannot serve as a basis for finding a violation of Article 3 of the
Convention.
- The
applicant challenged the Government's description of the conditions
in detention facilities nos. IZ-77/2 and IZ-77/3 and insisted that
they had been unacceptable. He submitted that the cells had at all
times been severely overcrowded and the cell area per detainee had
been insufficient, that the toilet offered no privacy, and that the
lighting had been dim.
B. The Court's assessment
1. Admissibility
- The
Court notes at the outset that the applicant was transferred from
pre-trial detention facilities to a correctional colony on 9
September 2003. In his letter of 21 October 2003, which set out a
summary of the relevant facts, the applicant explicitly informed the
Court that he wished to complain, inter alia, of a violation
of Article 3 of the Convention with respect to the conditions of his
pre-trial detention. The Court received this letter on 4 November
2003. The Court reiterates that an application is lodged on the date
of the applicant's first letter, provided the applicant has
sufficiently indicated the purpose of the application (see
Papageorgiou v. Greece, judgment of 22 October 1997, Reports
of Judgments and Decisions 1997 VI, § 32). Therefore,
the Government's argument should be dismissed.
- The
Court also notes, as far as exhaustion of domestic remedies is
concerned, that it is true that the applicant did not lodge
complaints with the courts or prosecutor's offices about his
detention conditions. However the Government did not demonstrate what
redress could have been afforded to the applicant by such a measure,
taking into account that the problems arising from the conditions of
his detention were apparently of a structural nature and did not only
concern his personal situation (see Kalashnikov v. Russia (dec.),
no. 47095/99, 18 September 2001, Mamedova v. Russia,
no. 7064/05, § 57, 1 June 2006; and Benediktov,
cited above, §§ 29-30). The Court therefore finds that this
complaint cannot be rejected for failure to exhaust domestic
remedies.
- The Court further finds that this complaint is neither
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention nor inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- An
outline of the Court's case-law under Article 3 of the Convention on
account of the conditions of detention can be found in a number of
judgments concerning Russia (see, in particular, Kalashnikov v.
Russia, no. 47095/99, §§ 95 et seq., ECHR 2002-VI,
and Mayzit v. Russia no. 63378/00, §§ 34 et
seq., 20 January 2005).
- The
Court notes at the outset that the continuous nature of the
applicant's detention in facilities nos. IZ-77/2 and IZ-77/3 and his
identical descriptions of the conditions of the detention warrant the
examination of the applicant's detention from 5 June 2000 to 9
September 2003 without dividing it into separate periods (see, for
similar reasoning, Benediktov, cited above, § 31).
- The
Court observes that the parties disagreed as to the specific
conditions of the applicant's detention. There is also a divergence
in their submissions with respect to periods of time during which the
applicant was detained in particular cells. However, there is no need
for the Court to establish the truth of each and every allegation,
since it considers that those facts that are not in dispute give it
sufficient grounds to make substantive conclusions on whether the
conditions of the applicant's detention amounted to treatment
contrary to Article 3 of the Convention.
- The
Court notes that the Government did not submit any information on the
measurements of the cells. It also notes that whilst the Government
agreed that on several occasions the number of inmates exceeded the
cells' designed capacity (see paragraphs 16 and 28 above), in their
plea concerning the number of detainees they only indicated the
average occupancy rate for each cell. The statements indicating the
average number of the applicant's fellow inmates were supported by
extracts from the registration logs showing the number of detainees
for certain dates: one date in respect of each cell where the
applicant had been detained (see paragraph 17 above). The Court finds
it unconvincing that the Government preferred to submit the extracts
for certain dates only and failed to refer to any source of
information on the basis of which they had made the assertion on the
average numbers of inmates in the cells. Neither have they submitted
any documents on the basis of which their assertion could be
verified. In the absence of such information, the extracts from the
logs are of little evidential value for the Court. The Court further
notes that the Government were unable to indicate the exact number of
inmates in the cells from 5 June to 27 October 2000, alleging that
the relevant documents had been destroyed.
- In this respect, the Court observes that Convention
proceedings, such as the present application, do not in all cases
lend themselves to a rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that
allegation) because in certain instances the respondent Government
alone have access to information capable of corroborating or refuting
these allegations. A failure on a Government's part to submit such
information without a satisfactory explanation may give rise to the
drawing of inferences as to the well-foundedness of the applicant's
allegations (see, among other
authorities, Fadeyeva v. Russia,
no. 55723/00, § 79, ECHR 2005-IV, and Ahmet Özkan
and Others v. Turkey, no. 21689/93, § 426, 6 April
2004).
- Having
regard to the above-mentioned principles, in the absence of
sufficient official data as to the number of detainees, the Court
will examine the issue concerning the number of inmates in the cells
and the cell measurements on the basis of the applicant's
submissions, confirmed by his former cell-mates Mr M. and Mr V.
- It
follows from the applicant's submissions concerning cell measurements
and number of inmates per cell (see paragraphs 18 and 20 above) that
the living area per inmate varied from 0.65 to 1.3 sq. m.
Furthermore, as the number of detainees exceeded the number of beds,
the applicant had to share the bed with other detainees, taking turns
to sleep.
- Irrespective
of the reasons for the overcrowding, the Court considers that it is
incumbent on the respondent Government to organise its prison system
in such a way as to ensure respect for the dignity of detainees,
regardless of financial or logistical difficulties (see Mamedova,
cited above, § 63).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, § 104 et seq.,
ECHR 2005-... (extracts); Labzov v. Russia, no. 62208/00, § 44
et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§ 41 et seq., 2 June 2005; Mayzit v. Russia,
cited above, § 39 et seq.; and Kalashnikov v. Russia,
cited above, § 97 et seq.). More specifically, the Court has
recently found a violation of Article 3 on account of an applicant's
detention in overcrowded conditions in the same detention facilities
and approximately at the same time (see Benediktov, cited
above, §§ 31-41, Igor Ivanov v. Russia, no.
34000/02, §§ 16-18, and §§ 30-41, 7 June
2007; and Sudarkov v. Russia,
no. 3130/03, §§ 40-51, 10 July 2008).
- Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. Although in the present case there is
no indication that there was an explicit intention to humiliate or
debase the applicant, the Court finds that the fact that the
applicant was obliged to live, sleep and use the toilet in the same
cell with so many other inmates for about three years and three
months was itself sufficient to cause distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in
detention, and arouse in him feelings of fear, anguish and
inferiority capable of humiliating and debasing him. The applicant's
situation was, furthermore, aggravated by the lack of natural light
in the cell, as the cell windows had been covered with metal shutters
which blocked access to fresh air and natural light and which,
according to the Government, were removed only in November 2002.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant's detention in the
detention facilities nos. IZ-77/2 and IZ-77/3, Moscow, which must be
considered as inhuman within the meaning of this provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant further complained that his detention had not been
compatible with the requirements of Article 5 § 1 of the
Convention as there had been no legal basis for it after 1 October
2002. Article 5, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
...(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so...;
- The
Government contested that argument and pointed out that the complaint
under Article 5 was outside the six-month time-limit.
- The
Court reiterates that, according to Article 35 of the Convention, it
may only deal with the matter within a period of six months from the
date on which the final decision was taken. It observes that the
applicant's pre-trial detention ended on 19 February 2003 when the
Moscow City Court sentenced him to imprisonment. After that date his
detention no longer fell within the ambit of Article 5 § 1 (c),
but within the scope of Article 5 § 1 (a) of the Convention as
the lawful detention after conviction by a competent court; (see B.
v. Austria, judgment of 28 March 1990, Series A no. 175, pp.
14-16, §§ 36-39). The applicant lodged his application with
the Court on 21 October 2003, which was more than six months
after his pre-trial detention had ended.
- It
follows that this part of the application was lodged out of time and
must be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant
under Articles 3, 5 and 6 of the Convention. However,
having regard to all the material in its possession, 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 must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. 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 140,400 euros (EUR) in respect of pecuniary damage.
He submitted that that sum represented capital losses accrued during
his detention. The applicant argued that he had not been able to work
during the criminal proceedings, his relatives had to support him
during the whole period of his detention. He further claimed EUR
1,260,000 in respect of non-pecuniary damage.
- The
Government contested the existence of a causal link between the
alleged violation and the pecuniary loss alleged by the applicant.
They further argued that the applicant's claim pertaining to
non-pecuniary damage was excessive and unsubstantiated. In any event,
a finding of a violation would constitute sufficient just
satisfaction.
- The
Court notes that the decision to prefer criminal charges against the
applicant was not the subject of its review in the present case. It
shares the Government's view that there is no causal link between the
violations found and the pecuniary damage claimed (see Nakhmanovich
v. Russia, no. 55669/00, § 102, 2 March 2006). The
Court finds no reason to award the applicant any sum under this head.
Nevertheless, the Court accepts that the applicant suffered
humiliation and distress because of the inhuman and degrading
conditions of his detention, which cannot be compensated for by a
mere finding of a violation. Making its assessment on an equitable
basis, and taking into account in particular, the length of the
applicant's detention, it awards the applicant EUR 15,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- As
the applicant did not claim costs and expenses, the Court makes no
award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant's detention in facilities nos. IZ-77/2 and IZ-77/3
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand
euros) in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
