In the case of Zenkov v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Paulo Pinto de Albuquerque,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 April 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
37858/08) 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 Andrey Anatolyevich Zenkov (“the
applicant”), on 20 June 2008.
The applicant was represented by Mr A. Khinevich,
a lawyer practising in the Amur Region. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that the
conditions of his pre-trial detention had been incompatible with the standards
set forth in the Convention, that his pre-trial detention had been unlawful,
and that his ensuing claim for damages had been unsuccessful.
On 27 August 2010 the application was
communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1983 and lives in Blagoveshchensk.
A. Criminal proceedings against the applicant
On 11 March 2006 the applicant was arrested on
suspicion of fraud. On 12 March 2006 the Blagoveshchensk Town Court of the Amur
Region authorised the applicant’s detention. As regards the reasons justifying
applicant’s detention, the court noted as follows:
“... [the applicant] is charged with moderately
serious offences carrying a custodial sentence of up to five years. It can be
seen from the materials submitted that [the applicant] is charged with offences
committed by a group of people. In such circumstances, the court considers
that, if at liberty, [the applicant] might abscond in order to evade justice,
or fail to appear for questioning before the investigator or in court in order
to obstruct the proceedings, and he might [also] put pressure on witnesses or
destroy evidence.”
The applicant remained in custody pending the investigation
and trial. His detention was extended on several occasions.
On an unspecified date the investigator
reclassified the charges against the applicant to several counts of theft and
robbery.
On 21 November 2006 the Town Court opened the trial
against the applicant and seven other persons.
On 29 June 2007 the Town Court extended the pre-trial
detention in respect of the applicant and four of the co-defendants until 21 October
2007. In particular, the court noted as follows:
“Having heard the defence parties, who consider that the
preventive detention imposed on [the defendants] can be replaced by a less
strict measure, having studied the materials of the case-file, and having
regard to the fact that [the defendants] are charged with grievous offences and
moderately serious offences against property, the court does not consider that it
is possible to [release the defendants pending trial].”
On 16 November 2007 the Town Court extended the pre-trial
detention in respect of the applicant and the four other persons until
21 January 2008. The court reiterated verbatim its own reasoning from the
detention order of 29 June 2007. The applicant appealed, alleging that
from 21 October to 16 November 2007 he had been detained without a court order.
On 17 December 2007 the Town Court found the
applicant guilty as charged and sentenced him to ten years’ imprisonment.
On 21 February 2008 the Amur Regional Court quashed
the detention order of 16 November 2007 on appeal. The court acknowledged that
the review by the Town Court of the applicant’s detention had been carried out
more than three weeks late, in contravention of the applicable domestic rules
of criminal procedure. The court further noted that, in view of the applicant’s
conviction and the imposition of a ten-year sentence, he could not be released
and there was no need to examine the issue of his pre-trial detention on the
merits.
On 31 July 2008 the Regional Court upheld, in
substance, the applicant’s conviction on appeal and reduced his sentence to
eight years’ imprisonment. The court quashed the applicant’s conviction in
respect of one count of theft and remitted the matter for fresh consideration.
On 13 October 2008 the Town Court discontinued
the criminal proceedings concerning one of the thefts allegedly committed by
the applicant. The applicant did not appeal.
On 8 June 2009 the Presidium of the Regional
Court carried out a supervisory review of the applicant’s conviction and
reduced his sentence to seven years and six months’ imprisonment.
On 5 February 2010 the applicant was released on
parole.
B. Proceedings concerning compensation for unlawful
detention
On 29 September 2008 the Town Court dismissed a
claim by the applicant for damages in the amount of 150,000 Russian roubles
(RUB) in respect of his allegedly unlawful detention from 21 October to 17 December
2007. In particular, the court noted as follows:
“... in view of the fact that the period [of the applicant’s
detention from 21 October to 17 December 2007] was set off against
the period of the applicant’s sentence imposed by the final judgment, the court
discerns no ground to find the applicant’s detention during the said period
unlawful. Nor does the court find the applicant’s claim for non-pecuniary
damage on account of [his] detention during the said period to be
substantiated. Accordingly, the court dismisses the claim.”
On 19 November 2008 the Regional Court upheld
the judgment of 29 September 2008 on appeal.
On 25 March 2010 the President of the Regional
Court granted the applicant’s request for supervisory review of the judgments
of 29 September and 19 November 2008.
On 19 April 2010 the Presidium of the Regional
Court quashed the judgments of 29 September and 19 November 2008 by way of
supervisory review and granted the applicant’s claims in part. Referring to the
Convention and the relevant provisions of the Russian Civil Code, the court
confirmed that, having been detained unlawfully, the applicant had a right to
compensation, and awarded him RUB 15,000. In particular, it ruled as
follows:
“Given that it has been established that [the applicant] was
unlawfully detained [from 21 October to 17 December 2007], and regard
being had to the length of such unlawful detention, its subsequent offsetting
against the period of imprisonment [the applicant] was sentenced to, and the
lack of evidence of any deterioration in the [applicant’s] health resulting
from his unlawful detention, the Presidium considers it appropriate to adopt a
new judgment granting the applicant’s claim for damages in part and awarding
him compensation in the amount of RUB 15,000.”
C. Conditions of the applicant’s detention
From 11 March 2006 to 11 March 2008, from
19 February to 19 March 2009, and from 28 May to 20 August 2009
the applicant was detained in remand prison no. 28/1 in Blagoveshchensk.
1. The description submitted by the
Government
. The
Government’s submissions as regards the conditions of the applicant’s detention
may be summarised as follows:
|
Period of detention
|
Cell no.
|
Cell surface area (square metres)
|
Number of beds
|
Number of inmates
|
|
From 11 March to 3 April
2006
|
|
|
|
-4
|
|
From 4 April to 22 May 2006
|
|
2
|
|
-31
|
|
From 23 May to 8 August
2006
|
|
|
|
-6
|
|
From 9 August to
26 December 2006
|
|
5
|
|
-4
|
|
From 27 December 2006 to
11 March 2008
|
|
2
|
|
-31
|
|
From 19 February to
19 March 2009
|
|
2
|
|
-22
|
|
From 28 May to 20 August
2009
|
|
|
|
-4
|
. According
to the Government, the applicant was at all times provided with an individual
bed and bedding, even though the personal space afforded to him was, on certain
occasions, less than the statutory 4 square meters per person. The
applicant was provided with three meals per day. The quality of the food was subject
to the requisite quality control.
. All the
cells in the remand prison where the applicant was detained were equipped with
forced ventilation. The ventilation system was in good working order. Natural
ventilation was achieved by means of trickle vents in the windows. The
temperature in the cells was between 18 and 24oC. The heating and
water supply were in compliance with the applicable standards. The metal bars
on the windows did not prevent access to daylight. The artificial lighting in the cells was in compliance with the
applicable specifications and was on from 6 a.m. to 10 p.m. At night low-voltage
bulbs were used to maintain lighting in the cell.
. The
toilet was located on a 35 cm-high platform in the corner of the cell. It was
separated from the living area of the cell by a brick or metal screen 1.75 or
1.65 m high which ensured privacy. The distance
between the toilet and the dining table was at least 1.5 metres. The closest
sleeping place was located from 1 metre (cell no. 98) to 2.45 metres (cell no. 209)
away from the toilet. The distance between the toilet
and the sleeping places or dining area was at least 1.6 meters. The cells were
regularly cleaned and disinfected.
The applicant was allowed daily outdoor
exercise. On average, the applicant was confined to his cell for 20-23 hours a
day.
2. The description submitted by the applicant
The applicant did not contest the data submitted
by the Government in respect of the measurements and population of the cells
where he had been detained. He added that for 5 days in December 2006 and 15
days in May 2008 he had been detained in disciplinary cells nos. 49 and 61,
where he was held in solitary confinement.
According to the applicant, he was not provided
with an individual bed. The cells in the remand prison were dirty and infested
with insects and mice. At times inmates suffering from tuberculosis were held
in the cell.
3. The applicant’s complaint about
the conditions of his detention in the remand prison
On an unspecified date the applicant complained
to the regional prosecutor’s office that the conditions of his detention were
appalling. In response to his complaint, the prosecutor’s office inspected the
remand prison.
On 31 October 2008 the prosecutor’s office
informed the applicant that the irregularities found in the course of the
inspection would be rectified. As regards the conditions of detention in the
remand prison, the prosecutor summarised the inspection findings as follows:
“The inspection found numerous violations of [the Federal Law on
the detention of suspects and defendants charged with criminal offences]
governing ... conditions of detention ... in remand prisons.
The furnishing of the cells is not in compliance with statutory
requirements. In some cells the number of tables, benches, cabinets for food
storage, and sinks is insufficient in relation to the number of inmates. There
is no artificial ventilation. Stands for drinking-water tanks and screens
separating the toilet from the rest of the cell are missing. There is no radio.
More than 40 per cent of the cells do not have wooden floors. Disinfection
measures are not carried out to the full extent (extermination of bed bugs in
disciplinary cells, extermination of cockroaches in the kitchen and bakery).
The cells are infested with insects (bed bugs, cockroaches) ...
Many cells require complete refurbishment (the walls and
ceilings are covered with mould, the plaster is flaking off the walls and
ceilings, there are numerous cracks). Because of the lack of forced ventilation
the cells are humid; the air is stuffy and humid. Some cells are not equipped
with a radio. The temperature is not in compliance with the applicable
standards.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
detained in appalling conditions in remand prison no. IZ-28/1 in
Blagoveshchensk, in contravention 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.”
The Government considered that the applicant had
not been subjected to inhuman or degrading treatment in contravention of
Article 3 of the Convention. The conditions of his detention in the remand
prison had been in compliance with statutory standards as regards hygiene,
heating and water supply. However, the Government conceded that the remand
prison where the applicant had been detained had been overcrowded and the statutory
requirement of 4 square metres per inmate had not always been complied with.
The applicant maintained his complaint.
A. Admissibility
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
. For
an overview of the general principles, see the Court’s judgment in the case of Ananyev and Others (nos. 42525/07 and 60800/08, §§ 139-59, 10 January 2012).
. Turning
to the circumstances of the present case, the Court observes that the parties
disagreed as to certain aspects of the conditions of the applicant’s detention
in remand prison no. IZ-28/1 in Blagoveshchensk during several periods
between 11 March 2006 and 20 August 2009.
. In
this connection, the Court takes into account the Government’s admission that
the remand prison was overcrowded and the personal space afforded to each
inmate was on certain occasions below the statutory minimum of 4 square metres.
The Court further observes that, on the basis of
the data submitted by the Government which was not contested by the applicant, the
applicant was afforded no more than 3 square metres of personal space on
average. Sometimes he had as little as 1.59 square metres of personal space
(see paragraph 23 above). As a
result of such overcrowding, the applicant’s conditions of detention did not
meet the minimum standard laid down in the Court’s case-law (see, among many
other authorities, Ananyev and Others, cited above, §§ 143-49). Furthermore, according to the
information provided by the Government, sometimes the number of inmates held in
the cell was greater than the number of sleeping places. Accordingly, the Court
finds credible the applicant’s allegation that he was not provided with an
individual bed. The applicant was confined to an overpopulated cell for 20-23
hours per day.
These findings are sufficient for the Court to conclude
that the problem of overcrowding had not been rectified by the authorities in
the present case at the time of the applicant’s detention. The Court acknowledges
that sometimes the number of inmates detained with the applicant decreased and
the personal space afforded to each of them exceeded 3 square metres. The Court
does not, however, regard such occasional fluctuations in the remand prison
population as having an attenuating effect on the applicant’s situation as a
whole.
Lastly, the Court takes into account the
prosecutor’s response to the applicant’s complaint about the conditions of
detention in the remand prison at the relevant time, which confirmed the
applicant’s allegations that the cells where he was detained, and the remand
prison as a whole, were in a deplorable state. It also notes that the Government did not proffer any explanation for the
discrepancy between the prosecutor’s findings and the information contained in
their observations.
. In
the Court’s opinion, the conditions of the applicant’s detention must have
caused him considerable mental and physical suffering that went beyond the
threshold of severity under Article 3 of the Convention. There has therefore been
a violation of the said Article on account of the inhuman and degrading
conditions of the applicant’s detention in remand prison no. IZ-28/1 in
Blagoveshchensk during several periods between 11 March 2006 and
20 August 2009.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The applicant complained under Articles 5
and 6 of the Convention that his pre-trial detention from 21 October to 16 November
2007 had been unlawful and that his ensuing claim for damages had been unsuccessful.
The Court will examine the complaint under Article 5 of the Convention,
which, 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;
...
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall have an
enforceable right to compensation.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the applicant had
lost his victim status. In their view, the Russian
authorities had expressly acknowledged the violation of his rights under
Article 5 and had awarded him commensurate compensation. In particular, they
pointed out that on 21 February 2008 the Regional Court had quashed
the detention order of 16 November 2007 on appeal. The court had
recognised that the applicant’s detention had been reviewed belatedly, in
contravention of the applicable domestic rules of criminal procedure.
Subsequently, the Presidium of the Regional Court had
granted in part the applicant’s civil claims concerning the unlawfulness of his
pre-trial detention during the relevant period and had awarded him RUB 15,000. Alternatively,
the Government submitted that the applicant’s complaints had been submitted
belatedly and should be dismissed for his failure to comply with the six-month
rule set out in Article 35 § 1 of the Convention.
The applicant considered his complaints
admissible.
2. The Court’s assessment
(a) The applicant’s victim
status
. The
Court reiterates that an applicant is deprived of his or her victim status if the national authorities have acknowledged, either
expressly or in substance, and then afforded appropriate and sufficient redress
for, a breach of the Convention (see, for example, Scordino
v.
Italy (no. 1) [GC], no. 36813/97, §§
178-93, ECHR 2006-V).
(i) Whether the domestic
authorities acknowledged the violation of the applicant’s rights
. As
regards acknowledgement of the violation of the applicant’s rights under
Article 5 of the Convention, the Court notes that, as pointed out by the
Government and not disputed by the applicant, on 21 February 2008 the Regional
Court found that that the applicant’s pre-trial detention during the
period under consideration had been unlawful.
. Accordingly,
the Court accepts that the Russian authorities acknowledged the violation of
the applicant’s rights under Article 5 of the Convention.
(ii) Whether the redress afforded was appropriate and
sufficient
. With
regard to the second condition, namely appropriate and sufficient redress, the
Court notes that the applicant received pecuniary compensation for the time
spent in custody.
. The
first question is whether, in the circumstances, such redress was
“appropriate”. The Court observes that it has previously examined this issue in
an earlier case against Russia, where it found that monetary compensation for
damage resulting from unlawful detention constituted “appropriate” redress for
an applicant who, by the time he was awarded it, was no longer in detention
(see Trepashkin v. Russia, no. 36898/03, §§ 71-72, 19 July
2007). The Court sees no reason to depart from such
conclusion in the case under consideration. It accepts, accordingly, that the
redress afforded to the applicant was appropriate.
. As
to the “sufficiency” of the redress, the Court’s task is to consider, on the
basis of the material in its possession, what it would have done in the same
position (see, mutatis mutandis, Scordino, cited above,
§ 211).
. The
Court observes that the Presidium of the Regional Court awarded the applicant
RUB 15,000 (approximately EUR 380 at the time) in compensation for
non-pecuniary damage on account of his unlawful detention from 21 October
to 17 December 2007, that is, for a longer period than that under
consideration in the present case. However, the Court notes that this amount is
much lower than the amount it generally awards in similar Russian cases
(compare, for example, Sergey Solovyev v. Russia, no. 22152/05, § 71, 25 September 2012, and Tarakanov v. Russia, no. 20403/05, § 63, 28 November 2013). That factor in itself constitutes a situation that is
manifestly unreasonable having regard to the Court’s case-law.
. The
Court thus concludes that the redress afforded to the applicant was
insufficient. Accordingly, the second condition has not been fulfilled. The
Court considers that the applicant in the instant case can still claim to be a
“victim” of the violation of Article 5 of the Convention. Therefore, this
objection by the Government must be dismissed.
(b) Application of the
six-month rule
As regards the six-month rule set out in Article 35 § 1 of the Convention, the Court observes that the
final decision concerning the lawfulness of the applicant’s pre-trial detention
was taken by the Regional Court on 21 February 2008. Accordingly, by
raising, in substance, the complaint under Article 5 § 1 (c) of the Convention in his
first letter to the Court dispatched on 20 August 2008, the applicant complied
with the six-month rule. The Government’s objection should therefore be
dismissed.
. The
Court further notes that in his application form of 31 January 2009 the
applicant raised an additional complaint about the domestic court’s dismissal
of his claims for the damage which allegedly resulted from his unlawful
detention. At the time, the final decision on the matter was that of the
Regional Court of 19 November 2008 (which was subsequently quashed by way
of supervisory review in 2010). Accordingly, no issue arises under the
six-month rule in respect of the applicant’s complaint under Article 5 § 5 of the Convention.
(c) Conclusion
. Regard
being had to the above, the Court finds that the complaints under
Article 5 §§ 1 (c)
and 5 of the Convention are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention, and that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
Article 5 § 1 (c)
(a) The parties’ submissions
The Government did not comment on the merits of
the complaint.
The applicant maintained his complaint.
(b) The Court’s assessment
The Court reiterates that
the expressions “lawful” and “in accordance with a procedure prescribed by law”
in Article 5 § 1 essentially refer back to national law and state the
obligation to conform to the substantive and procedural rules thereof. However,
the “lawfulness” of detention under domestic law is not always the decisive
element. The Court must in addition be satisfied that detention during the
period under consideration was compatible with the purpose of Article 5 § 1 of
the Convention, which is to prevent persons from being deprived of their
liberty in an arbitrary fashion. In particular, any ex post facto authorisation
of pre-trial detention is incompatible with the “right to security of
person” as it is necessarily tainted with arbitrariness (see, among numerous
authorities, Khudoyorov v. Russia, no. 6847/02, §§ 124 and
142, ECHR 2005-X (extracts)).
. Turning
to the circumstances of the present case, the Court observes that on
16 November 2007 the Town Court authorised the applicant’s detention from
21 October to 16 November 2007 ex post facto. The Court further
observes that on 21 February 2008 the Regional Court, when reviewing the
relevant period of the applicant’s pre-trial detention, recognised that it had
been authorised belatedly, in contravention of the applicable domestic rules of
criminal procedure.
. Having
regard to its well-established case-law on the issue and the circumstances of
the present case, the Court does not see any reason to disagree with the findings
of the domestic judicial authorities. It follows that the applicant’s pre-trial
detention from 21 October to 16 November 2007 was not “lawful” under domestic
law. There has, accordingly, been a violation of Article 5 § 1 (c)
of the Convention. In these circumstances, the Court does not find it necessary
to examine separately the applicant’s grievances under Article 5 § 5 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further
complained of other violations, referring to Articles 3, 5 and 6 of the
Convention and to Article 3 of Protocol No. 7.
The Court has examined these
complaints and 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, they 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.
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 540,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive.
The Court accepts the Government’s argument that
the applicant’s claim is excessive. Nevertheless, it considers that the
applicant’s suffering and frustration resulting from the infringement of his
rights cannot be sufficiently compensated for by the finding of a violation
alone. Making its assessment on an equitable basis, the Court awards the
applicant EUR 11,700 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not submit any claims for
costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
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 complaints concerning the
conditions of the applicant’s detention in remand prison no. IZ-28/1 in
Blagoveshchensk and the alleged unlawfulness of his pre-trial detention from
21 October to 16 November 2007 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 1 (c) of the Convention;
4. Holds that there is no need to examine the
complaint under Article 5 § 5 of the
Convention;
5. 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 11,700 (eleven thousand seven hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at
the rate applicable at the date of settlement;
(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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 April 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
