FIRST SECTION

CASE OF SMERTIN v. RUSSIA

(Application no. 19027/07)

JUDGMENT

STRASBOURG

2 October 2014

This judgment is final but it may be subject to editorial revision.
In the case of Smertin 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 9 September 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 19027/07) 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 Anatolyevich Smertin (“the applicant”), on 27 February 2007.
2.  The applicant was represented by Mr I. Chibyshev, a lawyer practising in Izhevsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3.  On 21 December 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A.  Criminal proceedings
4.  The applicant was born in 1968 and lived in Balezino in the Republic of Udmurtiya prior to his arrest.
5.  On 29 December 2005 the applicant was arrested on drug-related charges and taken to the local anti-narcotics unit. According to the applicant, he was beaten by policemen and then questioned in the absence of a lawyer.
6.  On 8 November 2006 the Balezinskiy District Court of the Republic of Udmurtiya found the applicant guilty and sentenced him to two years and ten months’ imprisonment. It appears that the applicant did not appeal against the judgment.
B.  Conditions of detention
7.  During several periods between 29 December 2005 and 9 November 2006 the applicant was held in IVS Balezino, a temporary detention facility located in the Udmurtiya Republic.
8.  The applicant submitted that the facility had been overcrowded. There were no windows in the cells where he stayed. The ventilation and water taps did not function. No mattresses or bed linen was available. Moreover, the detainees were not taken outdoor for exercise.
9.  The applicant lodged a number of complaints seeking to bring the above issues to the attention of domestic authorities. In his reply of 5 October 2006 the district prosecutor acknowledged that the conditions of detention in the IVS had fallen short of the legal requirements. He further informed the applicant that he had brought an action against the management of the IVS for their failure to improve the conditions.
10.  On 1 September 2006 the Balezinskiy District Court of the Republic of Udmurtiya granted the district prosecutor’s lawsuit. It found that the conditions of detention in the IVS Balezino had been characterised, inter alia, by a lack of bed linen and a possibility to take a shower and that the detainees had not been afforded daily outdoor exercise.
11.  On 19 October 2006 the regional Ministry of Interior sent a letter to the applicant, acknowledging, in particular, that the detainees kept in the IVS had been deprived of outdor exercise and and lacked bed linen.
12.  After some time the applicant brought a civil claim for compensation in connection with inadequate conditions of detention. By final judgment of 6 February 2008, the Supreme Court of Udmurtiya found that the applicant’s allegations had been substantiated and granted the claim, awarding him 3,000 Russian roubles.
II.  PROCEDURE BEFORE THE COURT
13.  On 27 February 2007 the applicant lodged his first letter with the Court. It contained, in particular, a detailed description of the conditions of his detention in the IVS Balezino.
14.  
“You must send the duly completed application form and any necessary supplementary documents to the Court as soon as possible and at the latest within six months of the date of the present letter. No extension of this period is possible. If the application form and all the relevant documents are not sent within the above period, the file opened will be destroyed without further warning.”
15.  According to a postmark on an envelope, on 30 October 2007 the applicant sent his completed application form which reached the Registry on 12 November 2007.
III.  RELEVANT LAW
16.  Rule 47 of the Rules of Court in force from 1 July 2006 until 1 January 2009 provided in its relevant part that:
“5. The date of introduction of the application shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the object of the application. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”
17.  Practice Direction on Institution of Proceedings issued by the President of the Court on 1 November 2003 to supplement Rules 45 and 47 of the Rules of Court read, in the relevant part, as follows:
“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the Registry may ask the applicant to fill in the form. It should as a rule be returned within 6 weeks from the date of the Registry’s letter.”
18.  On 11 December 2007 and 22 September and 1 December 2008 the Rules of Court were amended, with effect from 1 January 2009. Rule 47 was rephrased as follows:
“5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”
19.  On 22 September 2008 the text of the Practice Direction was amended as well, providing that:
“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
20.  The applicant complained that the conditions of his detention in the IVS Balezino infringed 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.  Admissibility
21.  The Government submitted that the complaint should be declared inadmissible. In their view, the Registry’s letter of 9 May 2007 and the Practice Direction on Institution of Proceedings of 1 November 2003 gave contradictory instructions concerning the time-limit for submission of a completed application form. Whereas the Practice Direction set the time‑limit to six weeks from the date of the first correspondence, the letter allowed the applicant to return the application form to the Registry within six months from that date. The latter, according to the Government, was incompatible with Article 35 § 1 of the Convention, which provides that the Court may only deal with the matter within a period of six months from the date on which the final decision was taken, but not from the date of submission of the first correspondence.
The Government were convinced that in case of a delay of more than six weeks between the posting of a first letter and the despatch of an application form, the date of the application form should be considered as the date of introduction of the case. Accordingly, they claimed that the complaint about the conditions of the applicant’s detention in the IVS Balezino had been submitted on 30 October 2007, more than six months after the applicant had left the temporary detention centre, and should thus be rejected as belated.
22.  The applicant submitted that he had despatched the application form in full compliance with the Registry’s instructions.
23.  The Court observes at the outset that it is not disputed between the parties that the applicant’s first letter of 27 February 2007 was “the first communication from the applicant setting out, even summarily, the object of the application”. It further notes that according to the Rule 47 § 5 in force at the time the date of such first communication was considered to be the date of introduction of the application interrupting the six-month limit set by Article 35 § 1 of the Convention.
24.  The Court reiterates that the purpose of the six-month rule is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time. As the Court has held, it would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an application could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants must therefore pursue their applications with reasonable expedition, after any initial introductory contact (see Kemevuako v. the Netherlands (dec.), no. 65938/09, 1 June 2010, § 20 and P.M. v. the United Kingdom (dec), no. 6638/03, 24 August 2004).
25.  Thus, the Court must establish whether the application form was lodged with an undue delay.
26.  The Court takes note of the Government’s reference to the Practice Direction of 1 November 2003, which set a time-limit of six weeks for the completed application form to be returned to the Registry. However, the Court considers that time-limit to be indicative, rather than obligatory. That becomes apparent when comparing the wording of paragraph 4 of the Practice Direction before and after the amendments of 22 September 2008 (“It should as a rule be returned within 6 weeks...” and “It must be despatched within eight weeks...” – see paragraphs 17 and 19 above).
27.  That is further corroborated by the amended Rule 47 § 5 of the Rules of Court, which clearly states that “failure to comply with the [eight-week] time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention” (see paragraph 19 above), whereas there was no such condition in the text of the Rule in force at the time (see paragraph 17 above).
28.  It follows that the regulations applicable at the time, namely Rule 47 § 5 of the Rules of Court of 1 July 2006 and paragraph 4 of the Practice Direction on Institution of Proceedings of 1 November 2003 did not set an inflexible time-limit for the submission of the application form, but rather required that the applicants pursue their applications “with reasonable expedition”.
29.  The Court further observes that the applicant submitted his application form less than six months after the Registry’s letter of 9 May 2007 and within the time-limit fixed therein (see paragraph 14 above and, a contrario, Kemevuako, cited above, §§ 21 and 23). Although it is doubtless that the applicant might have acted with more speed, the Court does not consider that delay to be “unexplained and unlimited” (see P.M., cited above).
30.  In view of the above, the Court rejects the Government’s objection and considers 27 February 2007 to be the date of introduction of the complaint. Since the six-month period started to run on 9 November 2006, the Court concludes that the applicant’s complaint is not out of time for the purposes of Article 35 § 1 of the Convention.
31.  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
32.  The Government did not submit any observations on the merits of the case.
33.  The applicant maintained his complaint.
34.  Having regard to the applicant’s factual submissions undisputed by the Government, and taking note of the acknowledgement of the applicant’s grievances by the domestic authorities (see paragraphs 9-12 above), the Court considers that the conditions of the applicant’s detention in the IVS Balezino amounted to inhuman and degrading treatment.
35.  There has accordingly been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 29 December 2005 to 9 November 2006.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
36.  The applicant further complained that he had been ill-treated by policemen, that his arrest had been unlawful and that different guarantees of Article 6 had been infringed during the criminal proceedings against him. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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
38.  The applicant claimed 2,000,000 euros (EUR) in respect of non‑pecuniary damage.
39.  The Government considered that the amount was excessive and needed to be decreased.
40.  Deducting the amount of compensation which the applicant obtained in the domestic proceedings, the Court awards the applicant EUR 4,918 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B.  Costs and expenses
41.  The applicant did not claim any costs or expenses. Accordingly, there is no call to make an award under this head.
C.  Default interest
42.  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 the IVS Balezino 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 EUR 4,918 (four thousand nine hundred and eighteen euros) to be converted into the currency of the respondent State 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Prebensen	Khanlar Hajiyev 
	Acting Deputy Registrar	President