FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24325/03
by Yuriy Mikhaylovich GENERALOV
against Russia
The European Court of Human Rights (First Section), sitting on 15 November 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 23 October 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yuriy Mikhaylovich Generalov, is a Russian national who was born in 1967 and lives in the village of Ferzikovo in the Kaluga Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, which are partly disputed between the parties, are summarised below.
1. General conditions of detention
Between 24 August 2001 and 27 December 2002 the applicant served his sentence for theft in penitentiary facility ZhH-385/5 (hereinafter referred to as ZhH-385/5 or “the prison”) in the village of Lepley in the Republic of Mordovia.
The parties’ descriptions of conditions in ZhH-385/5 differ on a number of accounts.
(a) The applicant’s account
Upon the applicant’s admittance to the prison on 24 August 2001 he was placed in unit no. 6. The unit measured 336 sq. m, which included the bedroom, the storage room, the catering room and the common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant had to sleep in the common room on several stools put together. The unit was equipped with only five washbasins, sometimes with no water in them.
From September to November 2002 the applicant was held in unit no. 2. The unit measured 280 sq. m, which included the bedroom, the storage room, the catering room and the common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant was again given a sleeping place in the common room on several stools put together. The unit was equipped with only five washbasins.
The toilet facilities of five cabins were shared by four units, nos. 2, 6, 7 and 9, which counted about 700 inmates in total.
The applicant did not specify in which unit he had been held in November-December 2002 before his release on 27 December 2002.
There were no water-heating facilities in the units that inmates could access.
The water in the shower was usually lukewarm; the inmates had to wait for hours for their turn to take a shower. The inmates did not have enough space for their personal belongings and had to dry their washed clothes in their living premises as well, causing constant stuffiness and stench. The living premises and canteen were shared with inmates suffering from tuberculosis, and this caused outbreaks of the disease. The administration did not respect the prison regulations on food supply, provision of clothing and items of hygiene. The inmates had pearl-barley mush three times a day for months, but received no vegetables, fish or meat at all and sometimes no tea for several weeks. The applicant was provided with a mattress, two sheets and a sweater, but the prison administration failed to provide him with a blanket, towels, underwear, other clothing, shoes or toothpaste.
During his detention the applicant was placed in a disciplinary cell on several occasions. In the disciplinary cell his head was shaved weekly, and when inspected by the warder he had to stand up facing the wall holding his hands up with the palms turned outwards.
In support of his allegations about the conditions in the facility the applicant submitted a number of written statements by other inmates of ZhH-385/5, dated 2-4 November 2002, which, in so far as relevant, may be summarised as follows.
Mr Kh. wrote that from December 2001 he was detained in unit no. 10. The unit counted 170 inmates of whom some, including Mr Kh. himself, were infected with tuberculosis and some were not; inmates were allowed about 1.4 sq. m of personal space. Only six washbasins were available for all the inmates of the unit; the catering room measured 2 sq. m; there was a common room, but it was also turned into a bedroom because of overcrowding. Mr Kh. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection “b” below).
Mr I. alleged overcrowding in his unit, claiming that inmates were allowed no more than about 0.5 sq. m of personal space.
Mr N. wrote that the inmates of two units (i.e. about 320 people in total) had to share toilet facilities which had only eight cabins and that the number of washbasins was insufficient (about 40 inmates per washbasin). He also alleged severe overcrowding, the presence of inmates infected with tuberculosis in the common units and poor catering.
Mr B. submitted that unit no. 6 which counted about 200 inmates had access to only 6 washbasins. The inmates of units nos. 2, 6, 7 and 9 (i.e. about 600 people in total) had to share toilet facilities which had only seven cabins, making it difficult to get access to them. He also alleged overcrowding in unit no. 6, claiming that inmates were allowed less than 1 sq. m of personal space, and complained about the extremely poor supplies.
Mr S. referred to extremely poor catering, a failure to supply him with any clothes or shoes and the scarce supply of toiletries. He also alleged overcrowding, claiming that inmates were allowed about 1.4-1.5 sq. m of personal space and that inmates infected with tuberculosis were mixed in with the rest. He contended that the unit of over 170 inmates had only seven washbasins, and the toilet facilities shared by two units (i.e. about 350 inmates) had only 8 cabins. The shower facilities were also scarce, so that 5 or 6 inmates had to use one shower-head at a time. Mr S. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection “b” below).
(b) The Government’s account
Upon the applicant’s admittance to ZhH‑385/5 on 24 August 2001 he was placed in unit no. 6. The bedroom of the unit measured 336 sq. m. It was intended for 183 detainees but was used by no more than 180 inmates. It was equipped with six taps, and seven more taps were placed in a heated wash-stand in the yard.
Between March and August 2002 he was placed in a high-security unit measuring 98 sq. m, intended for 49 detainees. However, only 21 inmates were held there.
Between September and December 2002 the applicant was held in unit no. 2. The bedroom of the unit measured 280 sq. m. It was intended for 140 detainees but was used by 125 inmates. It was equipped with seven taps, and seven more taps were placed in a heated wash-stand in the yard.
The water was supplied from four artesian wells which produced 120 cubic meters of water per hour. The average consumption of ZhH-385/5 was 63.35 cubic meters per hour. Cold water was always available in the taps except for three occasions on 25 June, 20 July and 21 October 2002 when it was cut off for several hours for maintenance; during these intervals drinking water was provided from other sources.
Every unit had facilities for boiling water. Inmates had free access to such facilities. Once a week they took hot showers. The units had toilets in outhouses with sumps.
Every unit had a room for drying clothes and a catering room equipped with food storage, tables and stools.
The applicant was at all times provided with an individual bed, bedding and clothes in accordance with prison regulations. According to the prison records, on 25 August 2001 the applicant received two sheets, one pillow and one pillow case, and on 29 August 2001 he received a mattress, a winter coat and a set of clothes. He was also offered a pair of boots but he signed a form refusing to take them. Meals catered for the inmates included meat, fish, milk, cereals and vegetables. The nutritional value met the required standards. The prison administration received no complaints concerning the quality of the catering.
The applicant never shared accommodation with inmates infected with tuberculosis. Detainees who had undergone treatment for tuberculosis were placed separately, in unit no. 10, and they were always catered for separately.
Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times. In particular, he was in the disciplinary cell in December 2001, February 2002 and November 2002. According to the prison regulations, when an official enters a disciplinary cell the detainee must stand up holding his hands behind his back. Since the applicant had shown a tendency for inflicting self-harm he was also required to turn his palms upwards so that the inspector would see that he was not hiding any objects that could be used for causing injuries. All inmates were required to keep their hair cut short. Only those suffering from pediculosis were recommended to shave their hair. However, this was not the applicant’s case and he did not have to have his head shaved.
On 17 November 2004 the Government questioned Mr S., who repudiated his 2002 statement, pointing out that he had written it on the applicant’s request and that any allegations he had made in it about unsatisfactory conditions of detention were untrue. On the same day they questioned Mr Kh., who wrote that in 2002 he had not written the statement submitted by the applicant, claiming that the handwriting and the signature on it were not his.
(c) Domestic proceedings
Following his release on 27 December 2002, on 17 February 2003 the applicant sent a complaint to the Principal Penitentiary Directorate of the Ministry of Justice of the Russian Federation in which he set out, inter alia, the shortcomings of the conditions in ZhH‑385/5. He also addressed two similar complaints to the Prosecutor General and to the Speaker of the State Duma, both of which were forwarded to the Penitentiary Directorate.
On 26 March 2003 and on 5 May 2003 the Penitentiary Directorate sent replies to the applicant dismissing his complaints; however it acknowledged that there had been certain shortcomings as regards the conditions in ZhH‑385/5. The latter reply stated, in particular, that “the flaws in catering, the irregular water supply in the units and the breaches of sanitary regulations were due to the [external reasons] related to the excessive number of inmates and have by now been overcome”.
On 15 September 2003 the applicant brought proceedings for damages against the administration of ZhH-385/5 alleging poor conditions in the facility, unlawfully imposed disciplinary charges, degrading treatment in the disciplinary cell, including regular head shaving; he also alleged that he had sustained damage to his health and complained about the rejection of his parcel in May 2002. The Zubovo-Polyanskiy District Court scheduled a hearing for 11 November 2003.
On 1 November 2002 the applicant asked for the hearing to be postponed on account of a medical emergency. On 12 November 2003 the Zubovo-Polyanskiy District Court stayed the proceedings until the applicant’s recovery.
On 12 February 2004 the proceedings in the case were stayed again for the applicant’s failure to pay court fees or to submit any documents that would justify a fee waiver. The applicant was given until 10 March 2004 to pay the fees or to request a fee waiver and provide the supporting documents. The applicant did not pursue these proceedings.
2. Alleged failure to diagnose and treat tuberculosis
(a) The applicant’s account
During the applicant’s detention in ZhH-385/5 he was examined several times by medical specialists who failed to diagnose him with tuberculosis.
Immediately after his release, on 4 January 2003, the applicant underwent a medical examination at the local clinic. Among other ailments he was diagnosed with “infiltrative pulmonary tuberculosis in a phase of destruction”.
(b) The Government’s account
On 16 August 2001 the applicant underwent an x-ray of his heart and lungs which showed no anomalies.
Upon his arrival in ZhH-385/5 the applicant underwent a medical examination. His state of health was found to be satisfactory, and the checks for tuberculosis, skin diseases, scabs and pediculosis did not reveal any such conditions.
On 11 September 2001 he underwent another x-ray of his heart and lungs which also showed them to be normal.
On 6 February 2002 another x-ray was made, and the applicant was sent for a further medical examination because of suspected tuberculosis. Further x-rays of 26 February 2002 and clinical tests of 27 February 2002 revealed some pathology in the lungs, but the tuberculosis specialist found that there was no tuberculosis. He recommended monitoring the applicant’s condition with an x-ray every 6 months.
From 26 February 2002 to 12 March 2002 the applicant was placed in a medical institution for prisoners to undergo examination for tuberculosis and other diseases.
On 11 March 2002 a further two-projection x-ray revealed changes in the pattern of the lungs and pleural thickening. However, the phlegm test did not confirm tuberculosis.
From 13 March 2002 to 3 April 2002 the applicant was in the medical ward of ZhH-385/5 for treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis.
On 6 June 2002 the applicant was sent for a regular medical check-up which included an x-ray, and gave results similar to those of February 2002, showing no clear indications of tuberculosis. On 14 June 2002 the tuberculosis specialist concluded that there was no evidence of tuberculosis.
On 28 September 2002 the phlegm test for tuberculosis proved “negative”.
In December 2002 the applicant’s next regular check-up was due, but he was released on parole before the scheduled date.
3. Alleged ill-treatment
(a) The applicant’s account
On 28 December 2001 the applicant was placed in a disciplinary cell. Handcuffs were put on his hands behind his back and locked to a water pipe about 40 cm above the floor. On the following day he was beaten up by the servicemen on duty. His request to have his injuries recorded by the medical personnel was refused.
On 6 February 2002, when the applicant was detained in the disciplinary unit, a search was conducted in ZhH-385/5. The applicant claimed that a special forces’ squadron was brought in for this purpose. He was severely beaten during the search and allegedly received injuries including bruises and abrasions on his left side. He also had a foreign body in his left side which was found and extracted later. However, immediately after the incident the applicant was refused permission to see a doctor.
The applicant has submitted that on 10 February 2002 he lodged a complaint with the prosecutor’s office about having been beaten during the search of 6 February 2002.
In February-March 2002 other inmates of ZhH-385/5 wrote statements in support of the applicant’s complaint. Mr L. wrote that on 10 February 2001 he saw in the shower that the applicant had bruises on his left side, loin and buttock. He also alleged that the applicant had repeatedly asked the prison administration to have the traces of beating recorded. Mr A. wrote that during the search of the disciplinary unit on 6 February 2002 he heard cries and sounds from which he concluded that the applicant was being beaten. He also stated that on 10 February 2001 he saw in the shower that the applicant had bruises on his left side, loin and buttock. Mr A. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection “b” below). Mr K. wrote that on that day he saw the applicant in the prison medical ward and noticed the traces of beating on his left side and traces of handcuffs. He also alleged that the applicant repeatedly requested the medical personnel to record the traces of beatings. Mr G. wrote that on the same day he was in the disciplinary cell and saw bruises on the applicant and traces of handcuffs.
On 11 November 2002, when the applicant was again in the disciplinary cell, he felt sick and demanded to be seen by a doctor. The warders ignored him at first, but then came into his cell and beat him up. His request for medical assistance for his injuries was refused, and he was left in the cell, handcuffed.
On 30 November 2002, still in the disciplinary cell, the applicant refused to go to work because he had not been provided with winter shoes. The warders threatened him and then beat him up while the head medical officer was present at the scene.
(b) The Government’s account
The applicant was not beaten or otherwise ill-treated in ZhH-385/5. Although he was regularly examined and treated in hospital for various diseases, none of his ailments were caused by any injuries other than self-inflicted ones.
Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times.
The applicant was handcuffed on two occasions. First, on 28 December 2001 and then on 11 November 2002 as described below.
On 28 December 2001 when he was brought before a prison official for a breach of prison discipline, the applicant broke a window and with a splinter of glass caused himself multiple scratches on his left forearm. He was therefore handcuffed for three hours from 3 p.m. to 6 p.m. After the handcuffs had been removed, he was placed in a disciplinary cell. The chief of ZhH-385/5 investigated the incident and concluded that the injuries were self-inflicted and were not the result of any criminal act. On 4 January 2002 the prosecutor’s office endorsed the decision dispensing with a criminal investigation into the incident.
Between 26 February 2002 and 12 March 2002 the applicant was held in a medical institution for prisoners, and was then transferred, until 3 April 2002, to the medical ward of ZhH-385/5 for further treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis. There are no records of any injuries dating from this period.
On 18 May 2002 the applicant caused himself a slash wound on the left forearm and was provided with medical aid.
On 6 June 2002 the applicant underwent a medical examination in the medical institution for prisoners. He was diagnosed with a hernia and was placed in hospital. On 5 July 2002 the applicant underwent a surgical operation for the hernia. At the same time a foreign body was found in his left side and was removed.
On 11 November 2002, when the applicant was held in a disciplinary cell, he made a written statement threatening to injure himself as a protest against the authorities’ refusal to place him in a medical institution for treatment of his “progressing diseases”. To restrain him, the prison warder handcuffed him between 11.30 a.m. and 6 p.m. On 13 November 2002 the chief of ZhH-385/5 investigated the incident and concluded that the handcuffing had been lawful and justified in the circumstances.
On 30 November 2002 the applicant was in the disciplinary cell. No force or special restraint measures were used against him on that day.
On 17 November 2004 the prison authorities questioned 13 inmates of ZhH-385/5 who had been serving their sentence at the same time as the applicant about the acts of ill-treatment alleged by the applicant. Four of the inmates questioned, Messrs S., K. Kh. and A., were those on whose earlier statements the applicant had relied. The statements submitted by the Government may be summarised as follows.
Mr S. wrote that he knew the applicant personally and the relations between them had been friendly. The applicant often revolted against the prison regulations and discipline. Mr S. had never heard that the applicant was beaten in the facility, or that other inmates were ill-treated in any way. He repudiated his 2002 statement.
Mr K. wrote that he had not written the statement of 26 February 2002, and that the handwriting and the signature on it were not his. He had never seen any injuries on the applicant, although he had met him in the medical ward when they were held in the same unit for one day.
Mr Kh. wrote that in 2002 he had not written the statement submitted by the applicant, claiming that the handwriting and the signature on it were not his. He had not seen any injuries on the applicant.
Mr A. wrote that he had had friendly relations with the applicant and that the latter had often disobeyed the lawful orders of the prison administration and breached discipline. The applicant was placed in the disciplinary cell, but even then continued to disobey. In February 2002 Mr A. was detained in a disciplinary cell next door to the applicant, but he had not heard of any violent acts against him. In the shower, he had not seen any traces of beating on the applicant. He repudiated his 2002 statement, pointing out that he had written it on the applicant’s request because of their friendly relations.
Mr Shch. wrote that in February 2002 he had been placed in the disciplinary unit. During his detention there a search was conducted, but no force was applied. He did not hear any cries or other violent sounds during the search, although the audibility in the unit was very high. He met other detainees of the disciplinary unit during walks, but nobody mentioned any beatings or other use of force against inmates. He did not know the applicant personally.
According to the Government, similar submissions were written by Mr Ya., but they did not attach a copy of his statement.
Mr Sh. wrote that he knew the applicant but did not have any relations with him. In February 2002 he was detained in a disciplinary cell next door to the applicant, but did not hear him being beaten, though the audibility in the disciplinary unit was very high. In the shower, he had not seen any traces of beating on the applicant. He did not hear the applicant complaining about having been beaten.
According to the Government, similar submissions were written by Messrs Ab. and V., but they did not attach a copy of their statements.
The Government also referred to the statements of Messrs T. and R. who submitted that they did not know the applicant and could not provide any relevant information, and of Mr Kr. who submitted that he knew the applicant but had had no contacts with him. No copies of these statements were made available to the Court.
(c) Domestic proceedings
On an unidentified date the applicant complained to the Prosecutor’s Office of the Dubravnyy District alleging that on 28-29 December 2001 he had been ill-treated. On 10 February 2002 he also lodged a complaint about having been beaten during the search on 6 February 2002.
On 31 May 2002 the applicant complained to the Zubovo-Polyanskiy District Court concerning the alleged ill-treatment and disciplinary sanctions imposed on him by the administration of ZhH-385/5. He claimed damages in the amount of 45,000 roubles. He sent an additional complaint to the court on 22 June 2002. The complaints were received by the court on 10 July 2002.
On 16 July 2002 the Zubovo-Polyanskiy District Court refused to accept the applicant’s complaints for consideration, having found that they had been submitted neither through the prison postal service nor through an authorised representative outside the prison, and therefore in breach of Article 91 of the Penitentiary Code. The applicant received this decision on 6 August 2002, but did not lodge an appeal against it. Instead he filed numerous petitions with various judicial instances requesting the quashing of the decision of 16 July 2002 in supervisory review proceedings. None of the petitions were successful.
On 17 July 2002 the prosecutor’s office decided to dispense with the criminal investigation into the alleged ill-treatment of 28-29 December 2001 and of 6 February 2002, having found the complaints unsubstantiated. It was noted, in particular, that during his placement in the disciplinary cell between 28 December 2001 and 12 January 2002 the applicant had not applied to the medical unit in order to have any injuries recorded. As regards the alleged ill-treatment on 6 February 2002, the prosecutor’s office questioned three other inmates who were detained in the same disciplinary unit as the applicant and two prison officers, none of whom confirmed his allegations. It was therefore concluded that the applicant’s allegations of ill-treatment were not supported by any evidence and that no further investigation was necessary. On an unidentified date the applicant challenged the decision of the prosecutor’s office of 17 July 2002 claiming that the failure to investigate the events of 6 February 2002 had been unlawful. He supported his complaint by written statements of inmates L., G., K. and A. confirming that several days after the search of 6 February 2002 they had seen bruises on his body and abrasions left by handcuffs on his wrists and that inmate A. had heard the applicant being beaten and crying for help.
On an unidentified date the applicant complained to the prosecutor’s office about the alleged ill-treatment of 30 November 2002. On 13 February 2003 the prosecutor’s office refused to institute criminal proceedings, having questioned the persons implicated and found the allegations of ill-treatment unsubstantiated.
On 18 April 2003 the Zubovo-Polyanskiy District Court examined the complaint concerning the decision of the prosecutor’s office of 17 July 2002. At the hearing the public prosecutor referred to the investigation conducted into the allegations of ill-treatment which turned out to be unsubstantiated as there were no witnesses and no record of the applicant’s applications for medical aid or of his complaints in this respect. Three implicated officials were questioned in court and denied the allegations. Statements by inmates L. and A. were produced, asserting that they had never written any statements concerning the alleged beating of the applicant and that they had neither seen any bruises on him nor heard any cries from his cell on the relevant date. On these grounds, the court dismissed the complaint and found the decision by the prosecutor’s office to dispense with the criminal investigation lawful and reasonable. The applicant did not appeal against this judgment.
On an unidentified date the applicant challenged before the court the alleged failure of the prosecutor’s office to register his complaint about the ill‑treatment on 30 November 2002. On 20 February 2004 the Zubovo-Polyanskiy District Court examined the claim and found that not only had the complaint been registered with the prosecutor’s office, but an official decision had been taken on 13 February 2003 dispensing with a criminal investigation into the allegations. The applicant had been informed about it. Having noted that the applicant had not challenged the merits of the latter decision, the court rejected the claim. No appeal was lodged against this decision.
On 26 August 2004 the applicant brought new proceedings for damages against the administration of ZhH-385/5. He alleged ill-treatment in the prison and in the disciplinary cell, complained about unlawfully imposed disciplinary charges and about damage to his health.
On 31 August 2004 the Zubovo-Polyanskiy District Court stayed the proceedings until 27 October 2004 and ordered that the applicant comply with formal requirements for lodging a claim, i.e. by attaching the originals or copies of documents he referred to in his complaints and paying the full amount of the court fee, or providing justification for a fee waiver. The applicant did not pursue these proceedings.
On 19 November 2004 the applicant lodged a new claim with the Zubovo-Polyanskiy District Court which was similar to that of 31 August 2004. On 24 November 2004 the court stayed proceedings because the applicant had again failed to pay the court fee or file a waiver application, and to attach the copies of relevant documents and the required number of copies of his writ. The applicant was given until 13 December 2004 to rectify the shortcomings. The applicant did not pursue these proceedings. Apparently he lodged a new claim of similar content, failing once again to pay the court fee or request a waiver, and to provide the required copies. On 11 January 2005 the Zubovo-Polyanskiy District Court stayed the proceedings and gave the applicant until 10 February 2005 to comply with these requirements. The applicant did not pursue these proceedings either. Likewise, he did not appeal against the stay of any of the above-mentioned proceedings.
4. Alleged interference with correspondence
(a) The applicant’s account
The applicant submitted that the prison administration had not sent his complaints to the competent authorities or his letters to his family, nor had it handed over to him letters from his family. For a year and a half of his detention he had received four letters from his relatives, while they had sent one letter per week. Because of the interference with his correspondence by the administration he had had to send it illegally, via detainees who were to be transferred or released, or through their relatives.
On 3 November 2002 the applicant’s mother wrote to the prison administration inquiring about the absence of letters from her son.
On 10 December 2002 the Chief of ZhH-385/5 informed her that the applicant said he had sent a letter to his mother. He emphasised that the applicant had refused to indicate the date of dispatch.
In May 2002 the applicant’s family sent him a parcel, however the prison administration returned it to the sender on the grounds that the applicant was not entitled to receive parcels at that time. The applicant complained to the prosecutor’s office. The replies of 22 August 2002, 17 October 2002 and 3 December 2002 dismissed the complaints stating, inter alia:
“In accordance with Article 123 § 3 of the Penitentiary Code of the Russian Federation, prisoners serving their sentence in strict conditions are allowed to receive two parcels ... and two postal packets a year. The applicant received the first postal packet on 21 March 2002. The term for receipt of the second postal packet will mature on 21 September 2002, i.e. six months after the receipt of the first postal packet. Therefore, the prison administration rightfully returned the postal packet to the sender.”
In support of his statement the applicant submitted a statement by Mr I. who wrote, on 2 November 2002, that he had experienced difficulties with dispatching official correspondence from ZhH‑385/5, claiming that some mail was delayed while certain letters had not been dispatched at all.
(b) The Government’s account
During the applicant’s detention in prison ZhH-385/5 he sent 38 complaints to various authorities via the prison administration.
On 27 May 2002 a parcel was delivered for the applicant, who at the time was being held in strict conditions of detention. Since the applicant was only allowed to receive two parcels per year and the previous one had been received less than half a year before, in January 2002, the parcel was returned to the sender and the reasons for the return were indicated.
Between August 2001 and December 2002 the prison administration did not receive any letters from the applicant’s mother concerning correspondence with him.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention about appalling conditions in ZhH‑385/5 and under Article 13 about the lack of an effective remedy in this respect.
2. He further complained under Article 3 of the Convention that he had contracted tuberculosis in ZhH‑385/5 and had not been provided with adequate medical assistance.
3. He also complained under Article 3 of the Convention about ill‑treatment on 28 and 29 December 2001, 6 February 2002 and 30 November 2002 and about the authorities’ refusal to investigate the incidents in the criminal proceedings.
4. Under Article 8 of the Convention the applicant complained that the prison administration had not transmitted his complaints to the State authorities or his letters to his family and had not handed over to him all his correspondence, in particular the parcel sent to him by his family in May 2002.
5. The applicant complained about the decision of the Zubovo-Polyanskiy District Court dated 16 July 2002 refusing to accept his claims for examination. This complaint falls under Articles 6 the Convention
THE LAW
1. The applicant complained under Article 3 of the Convention about poor conditions of detention in ZhH-385/5 and under Article 13 of the Convention that he did not have an effective remedy before a national authority in this respect.
Article 3 provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government submitted their account of the general conditions of detention in prison ZhH-385/5 (set out in the “Facts” section above) and claimed that they had been compatible with Article 3 of the Convention. They asserted that the applicant had been provided with an individual bed at all times and that the sanitary facilities had been satisfactory. They provided detailed information about the space and equipment in the living premises, the provision of food and clothes and the availability of sanitary facilities. In respect of the conditions in the disciplinary cell they submitted that the prison regulations required him, for safety reasons, to stand up holding his hands behind his back when a prison official entered the cell. They denied that the applicant’s head had ever been shaved.
The Government enclosed statements by several inmates who confirmed that cold water had always been available in the living premises and that hot water could be obtained from heating facilities. In support of their position they provided statements by other inmates summarised in the “Facts” section above. They furthermore challenged the witness statements originally submitted by the applicant on the ground that some of the persons who had allegedly made them had subsequently repudiated their statements. They considered that the applicant’s complaints were thoroughly examined, as required by Article 13 of the Convention.
The applicant contested the Government’s account of the conditions in ZhH-385/5, in particular the number of inmates per unit, the information on the quality of catering, the supply of clothes and bedding and the sanitary conditions, and their submissions concerning customary shaving in the disciplinary cell. His detailed account of conditions in the facility, accompanied by the statements of other inmates is set out in the “Facts” section above. In so far as the Government relied on witness statements which contradicted those submitted by the applicant, he pointed out that the Government had only obtained statements from persons who were still in detention and therefore within the power of the prison authorities, who could exert pressure on them.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant alleged, relying on Article 3 of the Convention, that he had contracted tuberculosis in ZhH‑385/5 and had not been provided with adequate medical assistance because of the failure to diagnose his illness while in prison.
The Government maintained that during his imprisonment the applicant had been regularly examined by a doctor and, although all necessary tests were carried out, he had never been diagnosed with tuberculosis. Besides that, the applicant had always been provided with adequate medical assistance for his various ailments. The Government considered this complaint manifestly ill-founded.
The applicant contested the Government’s submissions on the grounds that immediately upon his release he had undergone a medical examination in a local clinic and had been diagnosed with “infiltrative pulmonary tuberculosis in a phase of destruction”. He claimed that this was an advanced stage of the disease and that he could not have developed it after his release. He alleged medical negligence in diagnosing and treating him for tuberculosis. He considered the penitentiary authorities responsible for a failure to diagnose his condition and treat him earlier.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. The applicant complained under Article 3 of the Convention that he had been ill-treated on three occasions, namely on 28-29 December 2001, 6 February 2002 and 30 November 2002. He also complains that that prosecutor’s office did not conduct an effective investigation pursuant to his complaints.
The Government contended that the applicant had never been subjected to ill-treatment during his imprisonment in ZhH-385/5 and had never applied for medical help in connection with any injuries caused to him by others. On 28 December 2001 the applicant had broken a window and with a splinter of glass had scratched his left forearm. The subsequent medical examination had recorded a scratch on his left forearm and no traces of the alleged beating. As regards the applicant’s allegations of ill-treatment on 6 February and 30 November 2002, the prosecutor had refused to institute criminal proceedings, having found them unsubstantiated. That decision had been upheld by a court. Handcuffs had been lawfully applied to the applicant twice and only for as long as was strictly necessary, in order to prevent him causing injuries to himself. Therefore, they considered this complaint manifestly ill-founded.
The applicant reiterated his submissions concerning the alleged ill‑treatment and contended that no medical examination had been conducted in due time in order to record the injuries.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
4. The applicant complained that the prison administration had not dispatched all his correspondence from the facility and had not handed over all mail sent to him from outside the facility. He complained, in particular, about the failure to dispatch all letters to his mother and about the rejection of a parcel sent by his family in May 2002. The Court will examine the complaint under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government submitted that all the applicant’s letters and complaints handed over for dispatch to the prison administration had been sent to the addressees. They presented a list of 38 mail items sent by the applicant through official channels during his imprisonment. The prison administration had never received any complaints from the applicant’s mother about irregular correspondence. As regards the parcel, the applicant’s right to correspondence had been lawfully restricted since, having been held in strict conditions of detention, he had been entitled to receive only two parcels per year. At the relevant time his right to receive the second packet had not yet matured. Accordingly, the restriction had been in compliance with Article 8 § 2 of the Convention.
The applicant maintained his complaint. He referred to his mother’s enquiry of 3 November 2002 in which she had asked the chief of ZhH-385/5 why there had been no letters from her son for a long time. As regards the parcel, he argued that at the time when it was delivered he was in the prison hospital and therefore the restrictions should not have applied.
The Court notes that the applicant did not present any details about the allegedly missing letters, notably the dates of their intended dispatch or their reference numbers in the prison registry.
As regards the rejected parcel, the applicant did not substantiate his allegation that he was exempt from the rule on the limit of parcels. The Court considers that the restriction on the number of parcels per year imposed on the detainees under the strict conditions of detention constituted an interference with the applicant’s right to respect for his correspondence. However, it finds that this interference complied with the domestic law and that being a part of the system of enforcement of criminal punishment it pursued a legitimate aim of the prevention of disorder and crime. Finally, it finds nothing in the applicant’s submissions to indicate that this measure was imposed in a manner disproportionate to the aim pursued.
Moreover, the Court observes that the above complaints have never been brought before the domestic courts.
The Court therefore considers this part of the application manifestly ill-founded. It concludes that it must be rejected under Article 35 §§ 3 and 4 of the Convention.
5. The applicant complained about the refusal of the Zubovo-Polyanskiy District Court on 16 July 2002 to accept his claims for examination. This complaint falls to the examined under Article 6 of the Convention which provides, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government referred to Article 91 of the Penitentiary Code and claimed that if a prisoner’s correspondence arrived through channels other than official ones, the receiving officials might not trust the identity of the sender. Moreover, they considered that there was no need for the applicant to send his post through unofficial channels because he was entitled to send it through the prison postal service.
The applicant maintained his complaint.
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Article 3 and 13 of the Convention concerning the conditions in the correctional facility, his complaints under Article 3 of the Convention concerning the alleged ill-treatment and the alleged failure to diagnose and treat tuberculosis during his imprisonment, and his complaint under Article 6 of the Convention as regards the access to a court;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy