CASE OF BAGEL v. RUSSIA

FIRST SECTION

CASE OF BAGEL v. RUSSIA

(Application no. 37810/03)

JUDGMENT

STRASBOURG 

15 November 2007

FINAL

15/02/2008

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 Bagel v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

MrL. Loucaides, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 23 October 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 37810/03) 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 Aleksandr Nikolayevich Bagel (“the applicant”), on 10 October 2003.

2. The applicant was represented by Mr M. Mereshchak, a lawyer practising in Barnaul. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

3. On 30 September 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Barnaul.

A. Criminal proceedings against the applicant

6. On 12 October and 15 December 1999 and on 4 February 2000 the applicant was charged with unlawful business activities, tax evasion and fraud, respectively. Three criminal cases against the applicant were initiated.

7. On 4 February 2000 the applicant was remanded in custody.

8. On 9 August 2000 the three criminal cases against the applicant were joined.

9. From 10 December 1999 to 15 March 2001 the prosecutor's office of the Tsentralnyy District of Barnaul extended the preliminary investigation seven times in view of the complexity of the case.

10. On 29 June 2001 the bill of indictment against the applicant was issued.

11. On 17 September 2001 the case was transmitted to the Tsentralniy District Court of Barnaul.

12. On 6 March 2003 the Tsentralniy District Court of Barnaul convicted the applicant as charged and sentenced him to four years' imprisonment.

13. On 15 May 2003 the Altayskiy Regional Court commuted the term of imprisonment to three years and ten months and upheld the remainder of the judgment.

14. The applicant was released on 23 May 2003.

B. Conditions of the applicant's detention

1. Detention from 4 to 20 February 2000

15. Following his arrest on 4 February 2000 the applicant was detained in a temporary detention centre in Barnaul (Изолятор временного содержания г. Барнаула). Thereafter, the applicant was transferred to the pre-trial detention centre no. IZ-17/1.

In the course of the preliminary investigation the applicant was returned to the temporary detention centre several times in order to participate in investigative measures. The applicant submitted, and the Government did not dispute, that he had spent seventy-nine days in total in the temporary detention centre. The parties did not specify the dates when the transfers to the temporary detention centre had taken place.

16. It is clear that from 4 to 20 February 2000 the applicant was held in the temporary detention centre in a cell measuring 20 sq. m. The applicant submitted that he shared the cell with thirty inmates, that there had been no beds in the cell and that the inmates had to sleep on the floor.

17. According to the Government, the exact number of detainees per cell could not be established because the registers had since been destroyed. The Government also submitted that the applicant's cell had been equipped with beds.

2. Detention from 21 February 2000 to 23 May 2003

18. From 21 February 2000 to 23 May 2003 the applicant was held in the pre-trial detention centre no. IZ-17/1 in Barnaul.

19. The parties submitted the following information concerning the cells where the applicant had been held.

(a) Measurements of the cells and number of inmates per cell

(i) Cell no. 208

20. Relying on a certificate issued on 18 November 2005 by the pre-trial detention centre governor, the Government submitted that the applicant had been held in cell no. 208 from 21 February 2000 to 17 March 2000 and from 23 March 2000 to 15 June 2000. The cell measured 24.5 sq. m; was equipped with six beds and accommodated up to seven inmates. According to the certificate, at that time the pre-trial detention centre, which is designed to accommodate 1,135 persons, housed 2,600 to 2,790 inmates.

21. The applicant submitted that the cell measured 12 sq. m and had been severely overcrowded.

(ii) Cell no. 205

22. The Government submitted that from 15 June 2000 to 25 July 2000 the applicant had been held in cell no. 205. The cell measured 32.1 sq. m; it was equipped with eight beds and accommodated up to nine inmates. According to the same certificate, at the material time the detention centre housed 2,600 to 2,750 inmates.

23. The applicant submitted that the cell measured 16 sq. m and had been severely overcrowded.

(iii) Cell no. 221

24. The Government submitted that from 25 July 2000 to 25 March 2001 the applicant had been held in cell no. 221. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 2,320 inmates.

25. The applicant submitted that the cell measured 11 sq. m and had been overcrowded.

(iv) Cell no. 194

26. The Government submitted that from 25 March 2001 to 11 April 2001 the applicant had been held in cell no. 194. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 1,980 inmates.

27. The applicant submitted that the cell measured 10 sq. m and had been overcrowded.

(v) Cell no. 192

28. The Government submitted that from 11 April 2001 to 14 March 2003 the applicant had been held in cell no. 192. The cell measured 24.8 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,470 to 1,980 inmates.

29. The applicant disagreed with the Government, claiming that during the two years of his stay in cell no. 192 it had accommodated up to twelve inmates. As a result, inmates had to take turns to sleep or slept on the concrete floor. He submitted written statements by four of his former cellmates, according to which cell no. 192 measured 11 sq. m and had been severely overcrowded.

(vi) Cell no. 128

30. The Government submitted that from 14 April 2003 to 20 May 2003 the applicant had been held in cell no. 128. The cell measured 120.2 sq. m; it was equipped with thirty beds and accommodated up to twenty-seven inmates. According to the same certificate, at the material time the detention centre housed 1,400 to 1,470 inmates.

31. The applicant submitted that the cell measured 100 sq. m. He did not comment on the number of inmates in the cell.

(b) Sanitary conditions in the cells and the freedom of movement enjoyed by the applicant

32. Relying on the certificate issued on 18 November 2005 by the detention centre governor, the Government submitted that the conditions in all of the cells had been satisfactory. In particular, the cells had been equipped with a lavatory pan separated from the living area and the cell windows had not been covered with metal shutters. The certificate did not describe the state of the cells during the period of the applicant's detention from 21 February 2000 to 23 May 2003.

33. The Government submitted that the applicant had been allowed one-hour daily walks in the courtyard.

34. The applicant submitted that a lavatory pan had not been separated from the living area and offered no privacy; it had been located within 0.5 or 1 metre from the dining table. The cell windows were covered with metal shutters and let no air through. There was no ventilation in the cells.

35. The applicant pointed out that the sanitary conditions in cell no. 128 had been satisfactory.

(c) The applicant's placement in solitary confinement cell no. 3

36. From 17 to 23 March 2000 the applicant was held in solitary cell no. 3 on suspicion of having the HIV virus. The applicant submitted that the cell had been a punishment cell, located in the basement with no access to daylight or fresh air. He also submitted that he had not been given food for the first three days of his stay in that cell because he had not been provided with any cutlery or tableware by the detention centre administration. According to the certificate of 18 November 2005 issued by the detention centre governor and submitted by the Government, cell no. 3 was a solitary confinement cell rather than a punishment cell. The Government also submitted documents showing that the cell had a window and that the applicant had been provided in good time with cutlery, tableware and other necessary items.

(d) Medical assistance provided to the applicant

37. The applicant submitted that during the period of his detention his spine had hurt but he had been refused medical assistance. The Government provided the Court with the applicant's medical file, according to which the applicant had received treatment for spinal osteochondrosis at the detention centre's medical unit.

3. Conditions of the applicant's transport

38. The applicant was transported from the pre-trial detention centre to the courthouse on 145 occasions, the last time on 15 May 2003. He offered the following description of the days of transport.

39. On the days of the hearings he had been woken up at 5 a.m. At about 6 a.m. he had been taken from his cell to the so-called “assembly” cell, together with other detainees who had a hearing on that day.

40. The applicant had not normally arrived back at the prison until 7.30 p.m. and had been held in the “assembly” cell until 10 or 11 p.m. During the day he had received no food or outdoor exercise and had often missed the weekly shower.

41. The Government submitted that on the days of transport the applicant had been woken at 6 a.m. and taken to the court in the prison van. He would normally come back to the prison no later than 8 p.m. According to the certificate of 18 November 2005 issued by the detention centre governor, on the days of transport the applicant had been fed in the morning and had been given a packed meal in accordance with the order of the Ministry of Justice of 4 February 2004.

42. The applicant pointed out that the detention centre administration had started to give packed meals to detainees after 4 February 2004 when the respective order was adopted by the Ministry of Justice, whereas he had been released on 23 May 2003.

II. RELEVANT DOMESTIC LAW

43. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government. Section 23 provides that detainees should be held in conditions which meet sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware, cutlery and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.

44. Annex 3 to the Order of the Ministry of Justice of 4 May 2001 no. 136 (as amended on 4 February 2004) set detailed daily standards for free food, including packed meals, which were given to detainees at the material time.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

45. The applicant complained that the conditions of his detention in the temporary detention centre in Barnaul and in the pre-trial detention centre no. IZ-17/1 in Barnaul amounted to inhuman and degrading treatment in violation 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. Admissibility

1. The applicant's detention in the temporary detention centre in Barnaul

46. The Court notes that the applicant was held in the temporary detention centre in Barnaul between 4 and 20 February 2000. On the latter date he was transferred to pre-trial detention centre no.IZ-17/1 in Barnaul. It also appears that the applicant was brought back to the temporary centre on several occasions thereafter. However, neither party specified the exact dates. In any event, the Court notes that the applicant was taken to the temporary detention centre for the purposes of the investigation into his case (see paragraph 15 above). His most recent stay there would therefore have been before 6 March 2003 when the judgment in the applicant's case was pronounced, that is, more than six months before the application was lodged with the Court.

47. It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant's detention in pre-trial detention centre no. 1Z-17/1 in Barnaul

(a) Exhaustion of domestic remedies

48. The Government argued that the applicant had not exhausted the domestic remedies available to him. In particular, he had not complained about the conditions of his detention to a prosecutor's office or to a court.

49. The applicant submitted that he had unsuccessfully complained about the appalling conditions of his detention to various domestic authorities, including courts and prosecutor's offices. He had never received any reply.

50. The Court observes that it has already on a number of occasions examined the same objection by the Russian Government and dismissed it. In particular, the Court held that the Government had not demonstrated what redress could have been afforded to the applicant by a prosecutor, a court or other State agency, taking into account that the problems arising from the conditions of the applicant's detention were apparently of a structural nature and did not only concern the applicant's personal situation (see Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001 and Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The Court sees no reason to depart from that finding in the present case and therefore considers that this part of the application cannot be rejected for a failure to exhaust domestic remedies.

51. The Court observes that the remainder of the applicant's complaints under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

52. The parties disputed the actual conditions of the applicant's detention in pre-trial detention centre no. IZ-17/1 in Barnaul. In particular, the applicant and the respondent Government submitted differing measurements of the surface and differing information on the number of inmates per cell. However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation of the parties, because it may find a violation of Article 3 on the basis of the facts that have been presented or are undisputed by the respondent Government, for the following reasons.

53. As regards the cells' surface area, from the figures submitted by the Government it appears that for approximately two years and three months of the applicant's detention in pre-trial detention centre no. IZ-17/1 in Barnaul, at any given time there was 3.5 to 4 sq. m of space per inmate in the applicant's cell.

54. The Court recalls that in the Peers case a cell of 7 sq. m for two inmates was noted as a relevant aspect in finding a violation of Article 3, albeit in that case the space factor was coupled with an established lack of ventilation and lighting (see Peers v. Greece, no. 28524/95, §§ 70–72, ECHR 2001-III).

55. By contrast, in some other cases no violation of Article 3 was found as the restricted space in the sleeping facilities had been compensated for by the freedom of movement enjoyed by detainees during the daytime (see Valašinas v. Lithuania, no. 44558/98, §§ 103, 107, ECHR 2001-VIII, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004). According to the parties, the applicant was only afforded a one-hour daily walk outside the cell and only on the days when there was no court hearing. Accordingly, for approximately two years and three months the applicant was confined to the cell for twenty-three hours a day.

56. As regards the issue of overcrowding, the Government submitted that the intended capacity of cells nos. 205 and 208 had been exceeded by one person. The applicant, however, submitted that the overcrowding of the cells had been severe. The Court notes that the parties agreed in principle that cells nos. 208 and 205 accommodated more detainees than they had beds.

57. As regards cells nos. 3, 128, 192, 194 and 221, the Government submitted that this cell had not been overcrowded. The applicant, however, submitted that the intended capacity of the cells had been significantly exceeded. There was enough beds in the cells; as a result, inmates had to sleep in shifts.

58. The Court relies on a number of principles that have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts in dispute, the Court recalls its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.

59. Turning to the particular circumstances of the case, the Court observes that, according to the applicant's submissions, cell no. 192, which was designed to house six persons, at times had accommodated up to twelve inmates. The applicant produced witness statements by four of his former cellmates according to which the number of inmates in cell no. 192 had at all times exceeded the number of beds thereby compelling inmates to sleep in shifts.

60. The Court further observes that the certificate from the governor of 18 November 2005 acknowledged that during the period of the applicant's detention the intended capacity of the detention centre was at times exceeded by 30 to 150 per cent (see paragraphs 20 - 30 above). The Court finds it striking that, while the centre was severely overcrowded, there should have been no overcrowding in the cells where the applicant was held.

61. Having regard to statements by the applicant's former cellmates and the above-mentioned certificate from the governor, the Court finds it established that cells nos. 3, 128, 192, 194 and 221 had been overcrowded at the material time.

62. Irrespective of the reasons for the overcrowding, the Court considers that it is incumbent on the respondent Government to organise its penitentiary 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).

63. The Court has frequently found a violation of Article 3 of the Convention in similar cases on account of a lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, § 104 et seq., ECHR 2005-X (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, no. 63378/00, § 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers, cited above, §§ 69 et seq.).

64. The Court notes that the applicant's situation was further exacerbated by the fact that he was not provided with bedding and had to sleep on the concrete floor while suffering from osteochondrosis. Although the illness in itself does not imply a violation of Article 3, given, in particular, that the applicant received medical treatment (see Alver v. Estonia, no. 64812/01, § 54, 8 November 2005), the Court considers that this aspect is relevant in addition to the focal factor of the overcrowding, to show that the conditions of the applicant's detention went beyond the threshold tolerated by Article 3 of the Convention (compare Novoselov, cited above, § 44).

65. The Court considers that the applicant was subjected to inhuman and degrading treatment in violation of Article 3 of the Convention on account of the conditions of his detention in the pre-trial detention centre no. IZ-17/1 in Barnaul.

2. The conditions of transport

66. The Court has previously found a violation of Article 3 of the Convention in a Russian case where the applicant was transported in an overcrowded prison van (see Khudoyorov, cited above, §§ 112-20).

67. In the instant case the applicant's complaint under Article 3 concerns a different aspect of transport. He complains about the failure of the detention centre administration to provide him with a packed meal on the days of the trial and insufficient time to sleep on the days of transport.

68. The Court observes that the journey to the courthouse started approximately three hours after the applicant was woken-up. Before the departure the applicant was able to have breakfast. Neither party indicated how long the actual journey to the courthouse had taken or how many inmates had to share the prison van. It further appears that in most cases the applicant arrived back at the detention centre in time for the evening meal.

69. The Court notes that, according to the certificate issued by the detention centre governor dated 18 November 2005, on the days of his transport to the court the applicant had been given a packed meal in accordance with the provisions of Russian law effective at the material time. The Court further notes that during the period of the applicant's detention standards for packed meals were set by the order of the Ministry of Justice of 4 May 2001 no. 136 (see paragraph 44 above). The applicant's reference to the gap in legislation concerning packed meals during the period of his detention is therefore unsubstantiated.

70. As regards the lack of sleep, it appears from the submissions of the parties that the applicant was able to sleep at least from 11 p.m. to 5 a.m. each night and was not subjected to any deprivation of sleep during the period of his detention. The impugned treatment therefore did not attain a minimum level of severity sufficient to bring the complaint within the scope of Article 3 of the Convention.

71. Accordingly, there has been no violation of Article 3 of the Convention on account of the applicant's conditions of transport.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION

72. The applicant further complained under Article 5 § 1 (c) that his detention had been unlawful.

73. The Court observes that it is not required to decide whether or not the applicant's complaints concerning his pre-trial detention disclose an appearance of a violation of Article 5 § 1 (c) of the Convention. It reiterates that, according to Article 35 of the Convention, the Court 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 detention ended on 6 March 2003 when the Tsentralniy District Court of Barnaul convicted him (see Labita v. Italy [GC], no. 26772/95, § 147, ECHR 2000-IV). The applicant introduced his application on 10 October 2003, which is more than six months after his detention had ended.

74. 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

75. The applicant complained under Article 6 § 1 about the excessive length of the criminal proceedings against him.

76. The Court notes that the criminal proceedings in the applicant's case lasted three years, seven months and three days.

77. The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II, § 67).

78. The Court notes that the applicant himself does not appear to have contributed to the length of the proceedings. The Court further notes that the criminal case against the applicant was complex. It initially concerned three criminal charges, which were subsequently joined in one criminal case. The prosecutor's office extended the preliminary investigation several times in order for the investigation to gather evidence in all the episodes of the case. These extensions appear neither arbitrary nor unreasonable. After the preliminary investigation was completed, the case was pending before the trial court and the court of appeal for one year, seven months and twenty seven days. During that time the Court observes no substantial periods of the courts' inactivity. On the contrary, the hearings were held and the decisions were taken at regular intervals by the first instance and on appeal. The Court concludes that the period of three years and seven months when the judicial authorities were constantly dealing with the case does not as such offend the guarantees of Article 6 § 1.

79. Having regard to the above, the Court concludes that the length of the criminal proceedings in the present case did not exceed the “reasonable time” set out in Article 6 § 1 of the Convention. 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

80. 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

81. The applicant claimed 21,000 euros (EUR) in respect of pecuniary damage, representing the loss of earnings during the period of his detention and purchase price of food parcels brought by members of his family to the detention centre and EUR 3,100,000 in respect of non-pecuniary damage.

82. The Government submitted that the applicant's claims for pecuniary damage were unsubstantiated. They also contended that a finding of a violation would constitute sufficient just satisfaction for the non-pecuniary damage in the present case.

83. The Court considers that the applicant has failed to substantiate any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the applicant's claim for pecuniary damage. However, the Court accepts that the applicant suffered humiliation and distress because of the inhuman conditions of his detention. Making its assessment on an equitable basis, having regard to its case-law on the subject and taking into account, in particular, the length of the applicant's detention, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

84. The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Convention organs and this is not a matter which the Court has to examine of its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000).

C. Default interest

85. 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

1. Declares the complaints concerning the applicant's detention in the pre-trial detention centre no. IZ-17/1 of Barnaul and the conditions of his transport admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention the pre-trial detention centre no. IZ-17/1 of Barnaul;

3. Holds that there has been no violation of Article 3 of the Convention on account of the applicant's conditions of transport;

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, EUR 10,000 (ten 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;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 15 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenLoukis Loucaides
RegistrarPresident

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