THIRD SECTION

CASE OF SKLYAR v. RUSSIA

(Application no. 45498/11)

JUDGMENT

STRASBOURG

18 July 2017

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 Sklyar v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Helena Jäderblom, President,
	Branko Lubarda,
	Helen Keller,
	Dmitry Dedov,
	Pere Pastor Vilanova,
	Georgios A. Serghides,
	Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 27 June 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 45498/11) 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 Viktorovich Sklyar, on 13 June 2011.
2.  The applicant was represented by Ms. E. Efremova, a lawyer practising in Moscow. On 4 June 2013 the applicant was granted legal aid.
3.  The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
4.  The applicant complained that he had not been provided with a legal‑aid lawyer during the appeal proceedings in his criminal case and that the conditions of his detention in the correctional colony where he was serving his sentence were inhuman and degrading.
5.  On 20 November 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1975 and lived in Novosibirsk before his arrest.
7.  On 12 November 2010 the Kalininskiy District Court of Novosibirsk convicted the applicant of aggravated theft and armed robbery and sentenced him to nine years’ imprisonment. The applicant was represented by a lawyer in these proceedings.
8.  On 24 January 2011 an appeal brought by the applicant himself was examined by the Novosibirsk Regional Court in the absence of counsel. The appeal court upheld the applicant’s conviction.
9.  The applicant has been serving his sentence in IK-8 in Novosibirsk since 10 February 2011.
10.  As regards the conditions of the applicant’s detention in the IK-8 facility, the Government submitted information which can be summarised as follows:

Period of detention
	Unit no.

	Dormitory surface area in square metres

	Number of sleeping places
	Number of inmates assigned to the dormitory
	Number of washbasins and lavatories	

10-15 February 2011
	Quarantine section	50.2	24	6-24	2 and 2	

15 February – 30 May 2011	
17	219	109	100-108	8 and 10	

30 May 2011 – February 2013	7	213.2	106	100-105	8 and 10	

11.  The Government also submitted that all the units where the applicant had been detained had had a sufficient number of sleeping places for all the detainees, they had been ventilated through openings in the windows and had had access to cold water in accordance with up to date sanitary standards. The units were equipped with ten to fifteen kettles to boil water and tanks containing potable water. All the lavatories had individual cabins with doors that were one and a half metres high, opening to the outside. They submitted photographs of the washbasins and lavatories.
12.  The applicant acknowledged that he had an individual sleeping place. However, he underlined that the conditions he had to live in were cramped. He further submitted that the units had no access to natural light or had poor artificial lighting, that the ventilation did not work and that the air was damp. The food he was provided was not in accordance with the special diet prescribed for him. Furthermore, inmates with tuberculosis lived in the same dormitory. There were only three lavatories (in units 17 and 7), they had no doors and the applicant had no privacy when using them. They were clogged up most of the time owing to the number of people using them. Prisoners were only allowed one shower a week. The applicant had no access to potable water and only one washbasin out of four had worked. There were only two kettles for boiling water and the electricity was switched off during the day and therefore it was not possible to have boiled water. The applicant further submitted that the buildings where his units were located were in a hazardous condition and that the roof and walls were liable to fall in at any time owing to a lack of repairs. Lastly, the applicant adduced written statements from his four co-detainees who confirmed his account of the conditions of detention in IK-8 in Novosibirsk.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
Section 2.01	A.  Legal representation
13.  The Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides:
Article 51
“1.  The participation of legal counsel in criminal proceedings is mandatory if:
1)  the suspect or the accused has not waived the right to legal representation in accordance with Article 52 of this Code;
...
5)  the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
...
3.  In the circumstances as set forth in paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request of, or with the consent of, the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.”
Article 52
“1.  The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the suspect or accused’s own initiative. The waiver must be filed in writing and must be recorded in the official record of the relevant procedural act ...”
14.  The relevant domestic law and case-law governing the presence of lawyers in appeal proceedings in respect of criminal cases is also summed up in the Court’s judgments in the cases of Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 31-39, 2 November 2010; Shugayev v. Russia, no. 11020/03, §§ 38-43, 14 January 2010; Shumikhin v. Russia, no. 7848/06, § 17, 16 July 2015; Volkov and Adamskiy v. Russia, nos. 7614/09 and 30863/10, §§ 21-26, 26 March 2015; Eduard Rozhkov v. Russia, no. 11469/05, §§ 11-13, 31 October 2013; and Nefedov v. Russia, no. 40962/04, § 17, 13 March 2012.
Section 2.02	B.  Conditions of detention in correctional colonies
15.  The relevant domestic law concerning conditions of detention in correctional facilities is summed up in the leading case of Butko v. Russia, no. 32036/10, § 17, 12 November 2015.
Article III.	III.  RELEVANT COUNCIL OF EUROPE MATERIAL
16.  The relevant information concerning conditions of detention in correctional facilities in Russia is extracted from reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) in Butko, cited above, § 20.
THE LAW
Article IV.	I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
17.  The applicant complained that the authorities had failed to provide him with legal assistance in the first set of appeal proceedings in his case, contrary to Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows in the relevant part:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require[.]”
Section 4.01	A.  Admissibility
18.  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.
Section 4.02	B.  Merits
(a)	1.  Submissions by the parties
19.  The Government submitted that the applicant had waived his right to be represented by a lawyer in his appeal hearing, in accordance with the applicable provisions of the Russian Code of Criminal Procedure. In particular, they submitted that on 12 November 2010, after the text of the judgment in the applicant’s case had been announced, he had signed a written waiver refusing legal representation and indicating that his refusal had not been motivated by financial reasons. On 22 November 2010 the applicant had received a copy of the judgment and had signed another document in which he had stated that he would appeal against his conviction, that he had again refused the services of a lawyer and that the refusal was not for financial reasons. In his statement of appeal the applicant had not requested to have a lawyer appointed for the appeal hearing. The Government submitted copies of the documents of 12 and 22 November 2010 to the Court. The Government further submitted that on 24 January 2011, when the appeal court had examined the applicant’s case, he had not submitted any requests related to a lack of legal representation. Given the above, the applicant’s rights under Article 6 §§ 1 and 3 (c) of the Convention had therefore not been breached.
20.  The applicant disagreed and explained that he had never seen the documents submitted by the Government, had never signed them and stated that they had been forged. He acknowledged that he had not requested a lawyer during his appeal hearing. However, the appeal court should have enquired whether he wished to retain one and if so, to appoint a lawyer for him. He further submitted that he had not had the financial means to hire a lawyer at any stage of the criminal proceedings against him. In addition, he had needed qualified legal representation for his appeal because his criminal case had been particularly complex as it had involved charges of aggravated theft and robbery and only a practising lawyer could have effectively represented him.
(b)	2.  The Court’s assessment
21.  The Court notes at the outset that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 and therefore the applicant’s complaints under Article 6 §§ 1 and 3 should be examined together (see Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).
22.  The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest (see Hermi v. Italy [GC], no. 18114/02, § 73 in fine, ECHR 2006‑XII, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017). The Court has also held in Russian cases that the applicant’s representation on appeal was mandatory under domestic law when the applicant did not waive, explicitly or implicitly and in accordance with Article 51 of the Code of Criminal Procedure, his right to be assisted by counsel on appeal (see Volkov and Adamskiy, cited above, § 53, and Eduard Rozhkov, cited above, §§ 23‑24,).
23.  The Court has examined the two identical documents dated 12 and 22 November 2010 submitted by the Government. Each of them reads as follows in the relevant part:
“... (typed) I, Sklyar Sergey Viktorovich, hereby acknowledge that I have been notified of
1.  the right to participate in the appeal hearing of [my] criminal case through a legal representative. In case of the non-attendance of a lawyer of [my] own choosing, the court can propose within five days ... to ask another lawyer, and in case of refusal – to take steps to appoint a lawyer on its own initiative.
2.  the right to refuse legal representation.
The refusal of legal representation ... does not forfeit the right to subsequently ask for the appointment of a lawyer for representation in the criminal proceedings.
3.  the right to request a lawyer, including one who is free of charge, in cases provided for by the [Russian Code of Criminal Procedure]
(applicant’s handwritten signature)

The convicted person’s petition
(handwritten by applicant) [“I wish to appeal”, in the document of 12 November 2010; “I will appeal in accordance with the prescribed time-limits”, in the document of 22 November 2010.]
[typed] in the appeal court:
1)  I wish to ask a lawyer of my own choosing;
2)  I would like the court to appoint a lawyer;
(circled) 3) I refuse legal representation but my refusal is not motivated by financial reasons ...
(applicant’s handwritten signature)
...”
24.  In the Court’s view, both documents appear to be authentic. They bear the original handwriting and signature of the applicant which are the same on his application to the Court, express his acknowledgment of the contents of the documents and contain his unequivocal waiver of legal aid. Both waivers are marked by the clerk of the [Kalininskiy District] Court of Novosibirsk. The waiver of 22 November 2010 also bears an incoming correspondence number and the stamp of the court in question. Given the above, the Court therefore has no reason to question the authenticity and lawfulness of the two waivers and holds that they were established in a manner compatible with the requirements of domestic law and the Convention reiterated above (see, a contrario, Volkov and Adamskiy, cited above, § 57-59).
25.  The Court further notes that the applicant himself stated that he did not ask the appeal court to appoint a lawyer, despite his assertion that legal representation at the appeal stage was paramount to his defence (see paragraph 20 above). The applicant had been duly notified of his rights and, in particular, of the right to request the appeal court to appoint a lawyer for him after signing the waiver. However, he failed to exercise that right. In those circumstances, the Court does not consider that the domestic court was under an obligation to appoint a lawyer for the applicant (see, for similar reasoning, Aleksandr Dementyev v. Russia, no. 43095/05, § 48-50, 28 November 2013, where the applicant was advised, inter alia, of his right to legal representation and did not at any point alert the authorities to any need for further legal advice or clarification, the Court held that the domestic authorities had not been obliged to intervene or take steps to ensure that the applicant was adequately represented). In that regard, the Court observes that nothing in the case file suggests that such a request would have been unduly burdensome for the applicant or required special steps to be taken by him (ibid., § 50).
26.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant lawfully and unequivocally waived his right to be represented by a lawyer in his appeal hearing. There has accordingly been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
Article V.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
27.  The applicant further complained that the conditions of his detention in IK-8 in Novosibirsk were incompatible with Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 5.01	A.  Admissibility
28.  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.
Section 5.02	B.  Merits
29.  The Government submitted that the conditions of the applicant’s detention in IK-8 Novosibirsk had been in full compliance with Article 3 of the Convention.
30.  The applicant’s submissions regarding the conditions of his detention on in IK-8 in Novosibirsk are presented in paragraph 12 above.
31.  The Court notes at the outset that at any given period the applicant had little more than two square metres of floor space at his disposal. In that regard, the Court reiterates that an extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (Muršić v. Croatia [GC], no. 7334/13, §§ 136-37, ECHR 2016, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 139, 10 January 2012).
32.  The Court considers that the personal space available to the applicant was insufficient, given the number of detainees occupying the same unit (see paragraph 10 above). Furthermore, the Court also notes the inevitable lack of privacy endured by the applicant for a prolonged period in such cramped conditions, the inadequate number of sanitary installations (as confirmed even by the Government’s account) and their poor condition, which was plausibly described by the applicant. The Court has already found a violation in respect of issues similar to those in the present case, in the leading case of Butko (cited above). Moreover, the Government did not present any arguments that would rebut the strong presumption of violation of Article 3 when the personal space available to the applicant in multi‑occupancy accommodation falls below 3 square metres (see Muršić, cited above, § 138).
33.  In the light of the material submitted to it by the parties and having regard to its case-law on the subject cited above, the Court finds that the applicant was detained in conditions which were inhuman and degrading.
34.  There has accordingly been violation of Article 3 of the Convention.
Article VI.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35.  Lastly, the applicant raised additional complaints with reference to various Articles of the Convention, which the Court has also examined. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the applications is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article VII.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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.”
Section 7.01	A.  Damage
37.  The applicant claimed 500,000 euros (EUR) in respect of non‑pecuniary damage.
38.  The Government contested that amount as excessive.
39.  Making its assessment on an equitable basis, the Court awards EUR 8,000 to the applicant in respect of non-pecuniary damage for violation of Article 3 of the Convention, plus any tax that may be chargeable on that amount.
Section 7.02	B.  Costs and expenses
40.  The applicant also claimed EUR 1,320 for the costs and expenses incurred in the proceedings before the Court.
41.  The Government submitted that the claims should be reduced or denied as manifestly wrong.
42.  Regard being had to the documents in its possession and to its case‑law and to the fact that the applicant was granted legal aid from the Court (see paragraph 2 above), the Court awards EUR 470 to the applicant in respect of costs and expenses for the proceedings before it.
Section 7.03	C.  Default interest
43.  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 absence of a lawyer from the appeal proceedings and the conditions of detention admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention;

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

4.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 470 (four hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Helena Jäderblom
	Registrar	President