CASE OF ISAYKIN v. RUSSIA

THIRD SECTION

CASE OF ISAYKIN v. RUSSIA

(Application no. 53048/10)

JUDGMENT

STRASBOURG

27 February 2018

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

In the case of Isaykin v. Russia,

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

Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 February 2018,

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

PROCEDURE

1. The case originated in an application (no. 53048/10) 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 Igor Viktorovich Isaykin (“the applicant”), on 6 July 2010.

2. The applicant was represented by Mr E. Markov, a lawyer practising in Budapest. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 20 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1972 and is detained in Belovo, Kemerovo Region.

A. Conditions of detention

1. The applicant’s account

5. Following the applicant’s arrest on suspicion of drug trafficking, on 14 November 2008 he was placed in temporary detention facility no. 70/1 in Tomsk. He remained in that facility until 20 April 2010. He was detained in cells nos. 91, 1, 7, 55, 4, 56, 51. Each cell measured approximately twenty metres and housed, for the major part of his stay, between 10 and 14 inmates. In the majority of the cells the toilet was merely a hole in the floor. A lavatory pan was installed in three cells, in the corner, and was separated from the living area by a 1.5-metre fence. The applicant was afforded an hour-long walk daily in the recreation yard.

2. The Government’s account

6. According to the Government the applicant was provided with an individual sleeping place, except for the detention period between 18 November and 2 December 2008. There was artificial lighting, natural and artificial ventilation in the cells; the cells were heated.

B. Equality of arms at the appeal hearing

7. On 30 December 2009 the Leninskiy District Court of Tomsk found the applicant guilty of attempted drug trafficking and sentenced him to nine years and six months’ imprisonment.

8. The applicant’s lawyer lodged an appeal and asked to ensure the applicant’s presence at the appeal hearing.

9. On 17 May 2010 the Tomsk Regional Court upheld the conviction, having heard a prosecutor and the applicant’s lawyer. The applicant was not transported to the hearing.

10. On 13 February 2013 the Presidium of the Tomsk Regional Court quashed the decision of 17 May 2010 and remitted the case for a fresh examination.

11. On 25 March 2013 the Tomsk Regional Court upheld the applicant’s conviction on appeal. The applicant and his lawyer were present at the hearing.

II. RELEVANT DOMESTIC LAW

12. Domestic provisions relating to conditions of detention are described in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-54, 10 January 2012).

13. If a convicted person wishes to take part in appeal hearing, he or she must indicate this request in his or her statement of appeal (Code of Criminal Procedure of the Russian Federation, Article 375 § 2).

14. The failure of a party, who has been duly notified of the date, time and place of the appeal hearing, to attend the hearing should not preclude the court from proceeding with the examination of the case (Code of Criminal Procedure, Article 376 § 4).

15. If the court is unable to proceed owing to the absence of a party summoned to court, it must adjourn the hearing (Code of Criminal Procedure, Article 253 § 1).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

16. The applicant complained about poor conditions of detention under Articles 3, which reads as follows:

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

17. The Government contested that argument.

18. The applicant maintained his complaint.

A. Admissibility

19. 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

20. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with the detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).

21. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, 8 November 2005).

22. The Court notes that in the present case the applicant spent 1 year, 5 months, and 5 days in overcrowded cells measuring about 20 square metres. He was afforded 1.4 – 2 square metres of personal space.

23. Moreover, the toilet had been separated from the rest of the cell only by a low fence. The Court has noted in many cases that such close proximity of a lavatory pan and exposure was not only objectionable from a hygiene perspective but also deprived a detainee using the toilet of any privacy (see Ananyev and Others, cited above, § 157, with further references).

24. The applicant was allowed a one-hour period of outdoor exercise daily. The Court has frequently observed that a short duration of outdoor exercise limited to one hour a day was a factor that further exacerbated the situation of the applicants, who were confined to his cell for the rest of the time without any kind of freedom of movement (see Ananyev and Others, cited above, § 151, with further references).

25. The foregoing considerations are sufficient to enable the Court to conclude that the instant case the applicant’s conditions of detention were inadequate. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

26. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the authorities had failed to ensure his presence at the appeal hearing, while the prosecutor had attended and had made oral submissions. The relevant parts of Article 6 of the Convention provide as follows:

“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...”

27. The Government submitted that the applicant had lost his victim status.

28. The applicant maintained his complaint.

29. The Court reiterates that in situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 III).

30. The Court further reiterates that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 83, 2 November 2010, and Timoshin v. Russia (dec.), no. 17279/05, 17 May 2011).

31. In the present case the supervisory-review court quashed the appeal judgment on the ground that the lower court had failed to secure the presence of the applicant at the appeal hearing. Thus they explicitly acknowledged the infringement of the applicant’s right to defence in person in the appeal proceedings and ordered a fresh appeal hearing.

32. The applicant and his lawyer were present at the new appeal hearing and were able to make oral submissions. There is no indication that these new proceedings had any defects. Therefore the measures taken by the authorities provided adequate redress to the applicant in respect of the violation of his right to take part in the appeal hearing.

33. In these circumstances, the Court concludes that the defects in the original appeal proceedings were remedied by the subsequent procedure before the appellate court. The fact that the applicant was present at the new hearing constituted adequate redress for the violation of his right to fair trial.

34. Therefore, having regard to the content of the supervisory-review court’s judgment and the subsequent re-examination of the applicant’s case during which he was afforded an effective opportunity to be present, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities’ failure to summon the applicant to the hearing (see Timoshin, cited above; Lozhkin v. Russia (dec.), no. 16384/08, §§ 14‑22, 22 October 2013; and Khismatullin v. Russia, no. 33469/06, §§ 61-67, 11 December 2014).

35. It follows that the applicant can no longer claim to be “victim” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

36. The applicant also submitted other complaints, in particular complaints concerning conditions of detention in a correctional colony, courts’ findings of fact and law and reclassification of charges.

37. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

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

40. The Government stated that the sum claimed by the applicant was excessive.

41. The Court awards the applicant EUR 6,250 in respect of non‑pecuniary damage.

B. Costs and expenses

42. The applicant also claimed EUR 2,250 for the costs and expenses incurred before the Court.

43. The Government stated that the applicant had failed to provide supporting documents confirming his claims.

44. The Court notes that the applicant failed to submit any documents in support of his claim. Thus his claim is unsubstantiated.

C. Default interest

45. 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 complaint concerning the applicant’s conditions of detention under Article 3 admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 6,250 (six thousand two hundred fifty 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıLuis López Guerra
Deputy RegistrarPresident

 

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