CASE OF SAKHNOVSKIY v. RUSSIA

THIRD SECTION

CASE OF SAKHNOVSKIY v. RUSSIA

(Application no. 39159/12)

JUDGMENT

STRASBOURG

27 November 2018

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

In the case of Sakhnovskiy v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 November 2018,

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

PROCEDURE

1. The case originated in an application (no. 39159/12) 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 Veniaminovich Sakhnovskiy (“the applicant”), on 19 September 2012.

2. The applicant was represented by Ms O. Preobrazhenskaya, a lawyer admitted to practise practising in Moscow. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3. On 20 September 2017 the Government were given notice of the complaints concerning the conditions of the applicant’s detention and the alleged unfairness of the criminal proceedings against him and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1979 and lives in Novosibirsk.

A. Background information and the Court’s judgment in the applicant’s earlier case (application no. 21272/03)

5. The applicant was charged with and subsequently found guilty of murdering his father and uncle. The final decision on the matter was taken by the Supreme Court of the Russian Federation on 31 October 2002.

6. On 18 April 2003 the applicant lodged an application with the Court in which he complained of the unfairness of the criminal proceedings against him. In particular, he alleged that he had not been provided with legal assistance in the appeal proceedings (application no. 21272/03).

7. On 26 March 2007 the Court gave notification of the application to the Russian Government.

8. On 4 July 2007 the Presidium of the Supreme Court quashed the appeal judgment of 31 October 2002 by way of a supervisory review and remitted the matter for fresh consideration.

9. On 29 November 2007 the Supreme Court held a new appeal hearing in which the applicant took part by means of a video link and was represented by State-appointed counsel, A. The court upheld, in substance, the applicant’s conviction. The applicant had been allowed fifteen minutes to confer with his counsel by means of video link prior to the hearing.

10. On 15 January 2009 the Court examined the admissibility and merits of the case and held unanimously that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention in that the applicant had not received effective legal assistance during the appeal proceedings in his criminal case.

11. On 14 September 2009 a panel of the Grand Chamber accepted the Government’s request for the case to be referred to the Grand Chamber.

12. On 22 September 2010 the Grand Chamber delivered a new judgment in the applicant’s case. Noting that the applicant had been unable to enjoy effective legal assistance before the appellate court, it found a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof. In particular, the Grand Chamber concluded that the time allotted to the applicant for communication with his counsel had been insufficient and that the means of such communication had not ensured the requisite privacy.

B. Reopening of the applicant’s case by the national courts

13. On 13 October 2011 the President of the Supreme Court, referring to the Court’s judgment in the applicant’s case, asked the Presidium of the Supreme Court to reopen the proceedings.

14. On 23 November 2011 the Presidium of the Supreme Court granted the President’s request, quashed the judgment of 29 November 2007 and remitted the matter to the appellate court for fresh consideration.

15. On an unspecified date the Supreme Court appointed Ms K., a lawyer practising in Moscow, to represent the applicant. On 15 February and 1 March 2012 lawyer K. studied the applicant’s case file.

16. On 15 March 2012 the Supreme Court held a hearing in the applicant’s case. The applicant complained that he had not been provided with an opportunity to discuss his case with State-appointed counsel without running a risk of being overheard by a third party. The court adjourned the hearing in order to arrange for communication between the applicant and his lawyer.

17. On 22 March 2012 the applicant communicated with his lawyer by means of a video link. According to the Government, only counsel K. was present in the room during the video conference. The court’s employee responsible for the functioning of the video link was located outside the room in which counsel K. was present. The applicant was also alone in the video conference room. A guard was stationed outside.

18. On 5 April 2012 the Supreme Court upheld, in substance, the applicant’s conviction on appeal. Counsel K. attended the hearing. She did not submit fresh grounds for appeal and made submissions to the court that appeared to be based on the grounds for appeal originally filed by the applicant and counsel A. The applicant, who was detained in Novosibirsk, took part in the hearing by means of a video link. He had agreed to be represented by counsel K. and confirmed that he had been provided with sufficient time to communicate with her to discuss his case. He also agreed to pay her a legal fee.

C. Conditions of the applicant’s detention

19. From 7 February to 29 May 2012 the applicant was detained in remand prison SIZO-1 in Novosibirsk. According to excerpts from the remand prison population records submitted by the Government, he was held in the following cells:

Cell no.

Period of detention

Cell size (square metres)

Number of sleeping places

Number of inmates

322

From 7 to 8 February

19.3

8

3

48

From 8 February to 16 March

15.6

6

9

18

From 16 March to 29 May

25.7

8

7-8 (6 on 20 March)

1. Description provided by the Government

20. According to the Government, the cells in which the applicant was detained were furnished with a sink, a table, a bench, a cupboard for storing food products, a coat stand, a mirror, a drinking water tank, a rubbish bin, wash basins, a heater, an electric plug and an alarm button. There was a toilet cabin which ensured complete privacy for the person using it. The windows in the cells had small vents, which could be kept open to ensure access to fresh air. There were no grilles or shutters on the windows preventing access to daylight. During the daytime the cells were lit with a 95-watt electric bulb. During the night the cells were lit with a 60-watt electric bulb. The central heating system was always in a good working order. The temperature in the cells was maintained at +22 to +25oC in the summer and +19 to +21oC in the winter. The cells were cleaned once a week. The bed sheets were changed each time the inmates took a shower. Once a month the cells were disinfected, which ensured that they were free of insects or rodents.

2. Description provided by the applicant

21. According to the applicant, cells nos. 48 and 18 were overcrowded throughout the time he was detained there. During his detention in cell no. 48 he was not always provided with an individual bed. He did not have bed sheets, cutlery or toiletries. The cell was infested with bedbugs. The lighting was insufficient. The dining table was too small to accommodate all inmates. The applicant had to eat sitting on the floor. The table was located 1 metre away from the toilet. The toilet was separated from the living area of the cell by a brick wall that was 35 centimetres high. The flush was broken and the toilet caused a constant unpleasant smell in the cell. The ventilation system did not function. The food was of low quality. The inmates had to do their laundry in the cell. Some of the inmates had lice. The daily outdoor exercise lasted no more than 35 to 45 minutes. The exercise area was too small and often overcrowded.

3. The applicant’s civil action against the remand prison

22. On 15 March 2012 the applicant brought a civil action against the remand prison, alleging that he had been detained in inhuman and degrading conditions there.

23. On 14 March 2013 the Dzerzhinskiy District Court of Novosibirsk dismissed the applicant’s claims. The applicant appealed, challenging the District Court’s findings as regards the conditions of his detention in cell no. 48.

24. On 10 September 2013 the Novosibirsk Regional Court quashed the judgment of 14 March 2013 and granted the applicant’s claims in part. The court acknowledged that the applicant had been detained in cramped conditions in cell no. 48 and awarded him compensation for non-pecuniary damage in the amount of 10,000 Russian roubles (RUB). In particular, the court held as follows:

“Regard being had to the evidence submitted, [it follows] that during the period under consideration the personal space afforded to each inmate in the cell where the applicant was detained ... was 2.6 sq. m. From 7 February to 16 March 2012 ... the cell was overpopulated and the personal space afforded to the inmates was 2.2 sq. m, 1.95 sq. m and 1.7 sq. m. ...

In view of the above, [the court] considers that it has been established that during the period under consideration the personal space afforded to the applicant in cell no. 48 in remand prison no. 1 in Novosibirsk was below the standards set forth in the national legislation and in the case-law of the ECHR.”

25. According to the applicant, he received the compensation awarded to him by the judgment of 10 September 2013 in July 2016.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

26. The applicant complained that the conditions of his detention in remand prison SIZO-1 in Novosibirsk had not complied with the standards set out in Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

27. The Government acknowledged that the conditions of the applicant’s detention in cell no. 48, as regards personal space per inmate, had been below the statutory and Convention standards. They argued, however, that the conditions of the applicant’s detention in cells nos. 322 and 18 had been in compliance with the Convention requirements. In support of their observations, the Government submitted excerpts from the remand prison population records accounting for thirty-six days of the applicant’s detention and photographs of the cells in which he had been detained.

28. The applicant maintained his complaint. He considered that he could still claim to be a victim of the alleged violation in view of the insignificant amount of compensation awarded to him by the national judicial authorities.

A. Admissibility

29. The Court firstly notes that the applicant’s complaint concerning the conditions of his detention in the remand prison from 8 February to 16 March 2012 was examined by the national judicial authorities, who acknowledged the violation of his rights set out in Article 3 of the Convention and awarded him damages in the amount of RUB 10,000. It is therefore incumbent on the Court to ascertain whether the measures taken by the authorities, in the particular circumstances of the instant case, afforded the applicant appropriate redress in order to determine whether he can still claim to be a victim (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-93, ECHR 2006‑V). The Court considers that this issue is closely linked to the merits of the complaint, joins it to the merits and will return to it subsequently.

30. 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

31. The Court notes that the Government acknowledged that from 8 to 16 March 2012 the applicant had been detained in cramped conditions in violation of the Convention standards. The Court sees no reason to hold otherwise. It notes that, as established by the national judicial authorities, during the period indicated the personal space afforded to the applicant varied from 1.7 to 2.6 sq. m. That fact alone is sufficient to conclude that the applicant was subjected to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounting to degrading treatment prohibited by Article 3 of the Convention (compare Muršić v. Croatia [GC], no. 7334/13, §§ 151-53, ECHR 2016).

32. As regards the compensation the applicant received at the national level in connection with the conditions of his detention in respect of the period indicated above, the Court notes that the sum, in the amount of 140 euros (EUR), is considerably below the minimum generally awarded by the Court in cases in which it has found a violation of Article 3 (see, for example, Muršić, cited above, § 181, in which the Court awarded the applicant EUR 1,000 in respect of twenty-seven days of detention in inhuman conditions). The Court considers, accordingly, that the applicant can still claim to be a victim of a violation of Article 3 of the Convention in this respect.

33. As to the applicant’s detention on 7 February and from 16 March to 29 May 2012, the Court observes, on the basis of the materials submitted by the Government, that, apart from two days (7 February and 20 March 2012), the personal space afforded to the applicant varied from 3.21 to 3.67 sq. m. Furthermore, the Court notes that, as explained by the Government and shown in part in the photographs submitted by them, part of the surface area of the cell was occupied by four two-tier bunk beds, a table, a bench, a sink and a toilet. In the Court’s view, such an arrangement left inmates with literally no free space in which to move. The situation was further exacerbated by the fact that the opportunity for outdoor exercise was limited to no more than one hour a day, leaving the applicant for the remaining twenty-three hours without any kind of freedom of movement.

34. The Court refers to the principles established in its case-law regarding conditions of detention (see, for instance, Muršić, cited above, §§ 91-141; Kudła v. Poland [GC], no. 30210/96, §§ 90-94, ECHR 2000‑XI; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139-65, 10 January 2012). It reiterates, in particular, that 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 conditions of detention were “degrading” from the point of view of Article 3 and may disclose a violation, either alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36‑40, 7 April 2005).

35. Having examined the materials submitted to it, the Court has not found in the Government’s submissions any fact or argument capable of persuading it to reach a different conclusion in the present case. The applicant’s detention did not meet the minimum requirements as laid down in the Court’s case-law. The Court finds that he was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention on account of the conditions of his detention from 7 February to 29 May 2012 in remand prison no. 1 in Novosibirsk.

36. In view of the above, the Court does not consider it necessary to examine the remainder of the parties’ submissions concerning other aspects of the conditions of detention during the period in question.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

37. The applicant alleged that the legal assistance provided to him in a new set of appeal proceedings had not been effective, in contravention of Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:

“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[.]”

38. The Government contested that argument. They considered that the applicant had been provided with an opportunity to have a confidential conversation with his lawyer in order to prepare his defence effectively. He had not alleged before the appellate court that his communication with the lawyer had not been confidential.

39. The applicant maintained his complaint. He doubted that his communications with counsel K. by means of a video link had been confidential and complained that the time allocated had not been sufficient. Lastly, he submitted that for the proceedings to be fair he should have been present in the courtroom rather than made to participate in the appeal hearing by means of a video link. Alternatively, the national judicial authorities should have appointed a lawyer from Novosibirsk to facilitate the confidential communications between the applicant and counsel. He also claimed that he had been belatedly notified of the appeal hearing and, as a result, had been unable to discuss certain points with his lawyer.

A. Admissibility

40. 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

41. The general principles relating to effective participation in criminal proceedings by means of a video link are well established in the Court’s case-law (see, for example, Sakhnovskiy v. Russia ([GC], no. 21272/03, §§ 94-98, 2 November 2010, and Gorbunov and Gorbachev v. Russia, nos. 43183/06 and 27412/07, § 31, 1 March 2016).

42. Turning to the circumstances of the present case, the Court notes, and it is not disputed by the Government, that the appeal judgment of 29 November 2007 was quashed by way of a supervisory review expressly because of the authorities’ failure to provide the applicant with effective legal assistance in the appeal proceedings. However, the Government claimed that the authorities had done everything in their power to ensure that at the rehearing of the case in 2011, the applicant’s right to effective legal assistance was respected.

43. Having examined the materials submitted by the parties, the Court accepts that State-appointed counsel K. was a qualified lawyer and that there was no explicit disagreement between her and the applicant in respect of the substance or strategy of his defence. The Court is also ready to accept that counsel K. duly prepared to assist the applicant, and this is, without doubt, a relevant consideration. However, these arguments are not decisive; the Court must consider whether the arrangements for the conduct of the proceedings (and, in particular, for contact between counsel K. and the applicant) respected the rights of the defence.

44. The Court reiterates that the relationship between a lawyer and his client should be based on mutual trust and understanding. Of course, it is not always possible for the State to facilitate such a relationship: there are inherent temporal and logistical constraints in respect of meetings between a detained person and his lawyer. Notwithstanding possible difficulties or restrictions, such is the importance attached to the rights of the defence that the right to effective legal assistance must be respected in all circumstances (see Sakhnovskiy, cited above, § 102).

45. In the present case, the applicant was able to communicate with the lawyer appointed to represent him prior to the appeal hearing. He did not allege before the appellate court that the time allotted for such communication had been insufficient. However, such communication was conducted via a video link. The Court has previously expressed doubts as to the privacy of communication afforded by means of a video-conferencing system installed and operated by the State (see Sakhnovskiy, cited above, § 104). It has no reason to reach a different conclusion in the present case and accepts that the applicant might legitimately have felt ill at ease when discussing his case with State-appointed counsel via a video link.

46. The Court further observes that, apart from claiming that there were no other persons present during the video conference between the applicant and his lawyer, the Government did not provide any evidence allowing the Court to conclude that the video link was secured against any attempt at interception. Nor did the Government offer any explanation as to why it was not possible to organise at least a telephone conversation between the applicant and the lawyer or to appoint a local lawyer from Novosibirsk, who could have visited the applicant in the remand prison.

47. Regard being had to the above, the Court considers that the criminal proceedings against the applicant were unfair. The arrangements made by the Supreme Court were insufficient and did not ensure that the applicant had effective legal assistance during the appeal hearing.

48. Accordingly, there has been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (c) thereof.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.

51. The Government did not comment.

52. The Court firstly notes that in the present case it has found a violation of Article 6 § 1 of the Convention, in conjunction with Article 6 § 3 (c) thereof. Inasmuch as the applicant’s claim relates to the finding of that violation, the Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Sakhnovskiy, cited above, § 112). The Court notes, in this connection, that the criminal proceedings against the applicant may be reopened if the Court finds a violation of Article 6 of the Convention (ibid.).

53. The Court also considers that, as a result of the violation of the applicant’s rights set out in Articles 3 and 6 of the Convention, he sustained non-pecuniary damage which would not be adequately compensated for by the finding of a violation alone. Making its assessment on an equitable basis, it awards the applicant EUR 2,590 under this head, plus any tax that may be chargeable on those amounts.

B. Costs and expenses

54. The applicant also claimed EUR 4,800 for the costs and expenses incurred before the Court, to be paid into the bank account of his representative, Ms O. Preobrazhenskaya. He submitted that she had spent thirty-two hours studying the materials of the case file and the domestic and international legal practice, consulting the applicant and preparing observations on the matter.

55. Noting that the applicant had not provided a copy of a legal agreement between himself and his representative, the Government argued that no award should be made to the applicant under this head.

56. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicant the sum of EUR 1,000, to be paid into the bank account of Ms O. Preobrazhenskaya.

C. Default interest

57. 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 application admissible;

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

3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,590 (two thousand five hundred and ninety euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of Ms O. Preobrazhenskaya;

(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 27 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıAlena Poláčková
Deputy RegistrarPresident

 

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