FIRST SECTION

CASE OF MYSIN v. RUSSIA

(Application no. 6521/07)

JUDGMENT

STRASBOURG

16 October 2014

This judgment is final but it may be subject to editorial revision.

In the case of Mysin v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Erik Møse,
	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. 6521/07) 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 Viktor Aleksandrovich Mysin (“the applicant”), on 20 December 2006.
2.  The applicant, who had been granted legal aid, was represented by Ms O. Druzhkova, 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.
3.  On 30 April 2010 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A.  Conditions of the applicant’s detention between 18 July 2005 and 19 December 2007
4.  On 25 June 2004 the applicant was arrested on suspicion of theft of documents and death threat and later charged with several counts of murder and robbery. While in police custody, he was allegedly subjected to beatings.
5.  On 9 July 2004 the applicant was placed in remand prison IZ-27/1 in Khabarovsk.
6.  After an initial period of detention in ordinary cells of the prison, on 18 July 2005 the applicant was transferred to a special section designed for detention of persons sentenced to life imprisonment. The applicant stayed in several cells of that section until his departure to a correctional colony on 19 December 2007.
7.  The parties disagreed on many aspects of the material conditions of the applicant’s detention during that period.
8.  In the Government’s submission, the applicant was accommodated in four cells:
•	cell 182, from 18 July 2005 to 21 September 2006;
•	cell 176, from 21 September 2006 to 10 August 2007;
•	cell 178, from 10 to 22 August 2007;
•	cell 181, from 22 August to 19 December 2007.
9.  All cells measured 8.1 sq. m and had 2 sleeping places. The applicant stayed in them either alone or with another detainee, but the design capacity was never exceeded.
10.  Each cell had a window covered by metal bars which allowed sufficient access to natural light and fresh air. Two light bulbs, one for daytime and another for night-time lighting were installed in the cells. Running water was available at all times. Toilet pans were located at between 1 and 1.3 m from beds and dining tables and separated from the rest of the cells by a 1.5 meter-high brick partition. The applicant was allowed daily hour-long outdoor exercise. He could take a shower and wash his clothing once a week.
11.  In support of their position, the Government produced a number of certificates and statements issued by the director of remand prison IZ-27/1 on 7 July 2010 showing the numbers of the cells where the applicant stayed, the frequency of outdoor exercise and visits to the shower, as well as descriptions of the cells, their equipment and sanitary installations. The certificates were accompanied by copies of the applicant’s cell record, the prison population register and the schedules of outdoor exercise and sanitary measures covering the entire period of the applicant’s detention.
12.  Further to the Court’s request, the Government submitted a floor plan of the facility, containing indications of the cell surface.
13.  The applicant disputed the Government’s submissions concerning the cells. He provided the following information in that regard:
•	cell 182, held from 18 to 30 July 2005;
•	cell 183, held from 30 July 2005 to 3 October 2006;
•	cell 173, held from 3 October 2006 to 12 July 2007;
•	cell 176, held from 12 to 30 July 2007;
•	cell 178, held from 30 July to 28 August 2007;
•	cell 181, held from 28 August to 8 September 2007.
14.  According to the applicant, the cells presented the following characteristics:
•	cell 182 measured 4.5 sq. m. The applicant stayed there alone;
•	cell 183 measured 5 sq. m and housed up to 3 inmates;
•	cell 173 measured 3 sq. m and accommodated 2 persons;
•	cell 176 measured 3 sq. m. The applicant stayed there alone;
•	cell 178 measured 3 sq. m and accommodated 2 inmates;
•	cell 181 measured 4 sq. m and hosted 2 detainees.
The applicant did not provide any information about the number of sleeping places in the cells.
15.  All cells were located in the semi-basement of the remand prison. They were poorly lit and ventilated. Metal shutters on the windows blocked access to natural light and fresh air. Heating did not function. Drinking water was available only on request from the prison guards. The toilet pan was not separated from the living area. The courtyard for outdoor exercise was very small.
16.  To corroborate his claims, the applicant submitted statements by two detainees from the adjacent cells who also stated that the applicant had been ill-treated by prison guards.
17.  On 25 July 2006 the Supreme Court of Russia found the applicant guilty as charged and sentenced him to life imprisonment.
B.  Complaints about the conditions of detention
18.  On 30 May 2006 the applicant’s mother complained to the regional prison authority about the conditions of his detention. In response to the complaint, on 27 June 2006 the authority admitted that the cell where the applicant was held had to be repaired and directed the management of the prison to transfer the applicant to another cell.
19.  On 2 August 2006 the applicant complained to the regional prosecutor about the conditions of his detention. He claimed, in particular, that there were metal shutters on windows, that the toilet pan was not separated from the rest of the cell and that the heating was too weak. Following an inquiry into the applicant’s allegations, on 19 August 2006 the district prosecutor concluded that “the [remand prison] cells [were being] renovated and properly maintained” and refused to open a criminal investigation into the matter. The applicant complained to a court.
20.  On 18 September 2006 the Kirovskiy District Court of Khabarovsk dismissed the applicant’s complaint against the prosecutor’s decision of 19 August 2006. The applicant appealed against the decision of 18 September 2006, but provided no further information about the outcome of these proceedings.
21.  On 9 October 2006 the applicant’s mother lodged another complaint with the regional prison authority, claiming, in particular, that the conditions of his detention had not improved. On 13 November 2006 the authority replied that the applicant’s cell had been recently renovated and satisfied the legal standards and that the applicant had no complaints in that regard.
THE LAW
I.  ADMISSIBILITY
A.  The applicant’s complaints about the conditions of his detention from 18 July 2005 to 19 December 2007 and the alleged absence of an effective domestic remedy
22.  The Government submitted that the applicant had not exhausted the domestic remedies because he had not raised the issue of the allegedly inhuman conditions of his detention before the Russian authorities, and in particular that he had not applied to domestic courts with claims for compensation of non-pecuniary damage. The Government referred to the cases of Mr D. and Mr G. who were granted compensations for the conditions of their pre-trial detention in different regions of Russia.
23.  The applicant disagreed with the Government’s submissions, pointing out his numerous attempts to bring the complaint to the attention of the Russian authorities (see paragraphs 18-21 above).
24.  The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about inhuman conditions of detention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 71, 17 January 2012 and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 70, 10 January 2012).
25.  The Court finds that the complaints concerning the conditions of the applicant’s detention and the existence of effective domestic remedies raise issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that they are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring them inadmissible has been established.
B.  The remainder of the applicant’s complaints
26.  The applicant also raised complaints about the conditions of his detention prior to 18 July 2005, the alleged ill-treatment by policemen and a lack of medical assistance, as well as about alleged deficiencies in the criminal proceedings against him. The Court has given careful consideration to these grievances in the light of all the material in its possession and considers that, in so far as the matters complained of are within its competence, 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 in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II.  THE MERITS
A.  Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention
27.  The Court has already examined the effectiveness of various domestic remedies suggested by the Russian Government, including civil claims for compensation, in a number of cases concerning inadequate conditions of an applicant’s detention (see Fetisov and Others v. Russia, cited above, §§ 82-87 and Ananyev and Others v. Russia, cited above, §§ 93-118) and concluded that for the time being the Russian legal system does not dispose of an effective remedy for such grievances.
28.  The Court finds no reason to depart from those findings in the present case. Accordingly, it dismisses the Government’s objection as to the non-exhaustion of domestic remedies and finds that the applicant did not dispose of an effective domestic remedy for his complaints, in breach of Article 13 of the Convention.
B.  Alleged violation of Article 3 of the Convention
29.  The applicant complained that the conditions of his pre-trial detention in remand prison IZ-27/1 of Khabarovsk between 18 July 2005 and 19 December 2007 violated Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1.  Establishment of facts
30.  The applicant was held in the Khabarovsk remand prison IZ-27/1 between 18 July 2005 and 19 December 2007, that is for almost two years and five months.
31.  The Government submitted documents which described various aspects of the applicant’s detention. Of particular note are the applicant’s cell record, the prison population register and the floor plan of the remand prison – the original documents which were prepared during the period of the applicant’s stay in the prison and covered the entire length of the detention. They showed that the applicant had been detained in cells 182, 176, 178 and 181 which measured 8.1 sq. m, had been equipped with two sleeping places and had accommodated no more than two persons during the period under examination.
32.  The applicant’s evidence included statements by two detainees. The Court observes that they presented an account of the applicant’s alleged ill‑treatment by prison guards but did not contain any significant details related to the material conditions of detention. Their evidential value is further diminished by the fact that their authors did not stay in the same cell as did the applicant. Furthermore, the applicant did not provide any information regarding the number of sleeping places.
33.  In such circumstances, the Court lends credence to the documents presented by the Government and rejects the applicant’s allegation of overpopulation. It finds it plausible that the applicant disposed of at least four square metres of personal space and was provided with a sleeping place in all the cells and was allowed daily outdoor exercise during the period of his detention.
2.  Compliance with Article 3
34.  The Court found it established that the applicant was provided between four and eight square metres of floor surface and disposed of his own sleeping place. It cannot be said that the dimensions of his cells were so small as to restrict the applicant’s freedom of movement below the threshold tolerated by Article 3 (see Ananyev and Others v. Russia, cited above, §§ 143-148).
35.  In the light of the parties’ submissions, the Court also finds it established that the applicant was allowed a one-hour period of outdoor exercise daily. Windows were not fitted with metal shutters, allowing natural light and fresh air to penetrate into the cells. The cells were also equipped with artificial lighting.
36.  The Court observes that the lavatory pans, the dining tables and the sleeping places were all located inside the cells in very close proximity. Brick partitions separated the toilets from the rest of the cells. Cold running water was available in the cells and the applicant had regular access to a shower and washing facilities.
37.  Taking into account the cumulative effect of those conditions, the Court considers that the conditions of the applicant’s detention in remand prison IZ-27/1 of Khabarovsk between 18 July 2005 and 19 December 2007 cannot be regarded as inhuman or degrading. There has been therefore no violation of Article 3 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  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
39.  The applicant claimed 14,600 euros in respect of non‑pecuniary damage.
40.  The Government did not comment.
41.  The Court has found a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy for the applicant’s complaint about the conditions of his pre-trial detention.
42.  The Court considers that the finding of a violation constitutes sufficient just satisfaction (see Ananyev and Others v. Russia, cited above, § 173). Accordingly, it rejects the applicant’s claims in respect of non-pecuniary damage.
B.  Costs and expenses
43.  The applicant did not claim any costs and expenses incurred either before the domestic courts or the Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join to the merits the Government’s objection relating to the exhaustion of domestic remedies and rejects it;

2.  Declares the complaints concerning the conditions of the applicant’s detention in remand prison IZ-27/1 of Khabarovsk from 18 July 2005 to 19 December 2007 and the alleged absence of an effective domestic remedy in this connection admissible and the remainder of the application inadmissible;

3.  Holds that there has been no violation of Article 3 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds that the finding of a violation constitutes sufficient 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