FIRST SECTION
DECISION
Application no. 50799/08
Dmitriy Yuryevich ZAKIROV
against Russia
The European Court of Human Rights (First Section), sitting on 18 February 2014 as a Committee composed of:
Khanlar Hajiyev, President,
Erik Møse,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 18 September 2008,
Having regard to the declaration submitted by the respondent Government on 21 June 2012 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Dmitriy Yuryevich Zakirov, is a Russian national, who was born in 1990 and lives in Pavlovo. He was represented before the Court by Mrs M. Belinskaya, a lawyer practising in St Petersburg.
The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The applicant complained, among other matters, about poor conditions of his pre-trial detention.
The application had been communicated to the Government, who submitted their observations on the admissibility and merits of the case, followed by the applicant’s observations in reply.
Subsequently the Government made a unilateral declaration with a view to resolving the issue raised by the application and requested to strike the application out of the Court’s list of cases.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that the conditions of his pre-trial detention amounted to inhuman and degrading treatment prohibited under Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
By a letter dated 21 June 2012, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike the application out of the list of cases in accordance with Article 37 of the Convention.
By the above declaration, the Russian authorities acknowledged that the applicant was detained in conditions which did not comply with the requirements of Article 3 of the Convention. The Government stated their readiness to pay to the applicant 4,610 euros (EUR) as just satisfaction. The remainder of the declaration read as follows:
“The authorities therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as ‘any other reason’ justifying the striking of the case out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
On 10 April, 30 July and 24 August 2012 the applicant submitted his comments on the above declaration. He rejected the Government’s offer, claiming, in particular, that the amount of the compensation was too low, as it did not take into account the costs and expenses incurred in the proceedings before the Court.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“...for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007, and Sulwińska v. Poland (dec.), no. 28953/03).
The Court notes at the outset that since its first judgment concerning the inhuman and degrading conditions of detention in Russian pre-trial remand centres (see Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI), it has found a violation of Article 3 on account of similar conditions of detention in more than ninety cases raising comparable issues. Most recently, the Court has adopted a pilot judgment concerning the structural problem of overcrowding and inadequate conditions of detention in Russian penitentiary facilities (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). It follows that the complaints raised in the present applications are based on the clear and extensive case-law of the Court.
Turning next to the nature of the admissions contained in the Government’s declaration, the Court is satisfied that the Government did not dispute the allegations made by the applicant and explicitly acknowledged that the conditions of his detention had been in breach of Article 3 of the Convention.
As to the intended redress to be provided to the applicant, the Court notes that even if the method of calculation of the non-pecuniary compensation employed by the Russian authorities in respect of the conditions-of-detention complaint did not correspond exactly to the guidelines established by the Court in the pilot judgment (see Ananyev and Others, cited above, § 172), what is important is that the proposed sum is not unreasonable in comparison with the awards made by the Court in similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V). The Government have committed themselves to effecting the payment of that sum within three months of the Court’s decision, with default interest to be payable in case of delay of settlement. As regards the legal costs and expenses, referred to by the applicant, the Court notes that it has a discretion to award legal costs when it strikes out an application (see Rule 43 § 4 of the Rules of Court and, for example, M.C.E.A. Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009; Shevanova v. Latvia (striking out) [GC], no. 58822/00, §§ 52-56, 7 December 2007; Sisojeva and Others v Latvia [GC], no. 60654/00, §§ 130-133, ECHR 2007‑I; and Meriakri v. Moldova (striking out), no. 53487/99, § 33, 1 March 2005).
The Court therefore considers that it is no longer justified to continue the examination of the case in the part concerning the complaints about inhuman and degrading conditions of the applicant’s detention. As the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of the judgments concerning the same issue, the Court is also satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the case. In any event, the Court’s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the application to its list of cases, should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006).
In view of the above, it is appropriate to strike the case out of the list in the part concerning the complaint about inhuman and degrading conditions of the applicant’s pre-trial detention.
II. ALLEGED VIOLATION OF OTHER CONVENTION RIGHTS
The applicant also raised additional complaints with reference to various Articles of the Convention and its Protocols.
Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of his application.
It follows that the remainder of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. AWARD OF COSTS
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court...”
The applicant submitted that costs and expenses incurred in the proceedings before the Court exceeded the sum offered by the Government. To that effect, he submitted the copies of two legal-services agreements with Mrs Belinskaya for 70,000 Russian roubles (RUB) and RUB 160,000 (approximately EUR 1,808 and EUR 4,130 at the effective official exchange rate), and the receipts showing that the sums had been paid.
The Government submitted no comments on those claims.
The Court observes that, when an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. The Court reiterates that when making an award under Rule 43 § 4 of the Rules of Court, the general principles governing reimbursement of costs are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002, M.C.E.A. Voorhuis v. the Netherlands cited above, no. 28692/06, 3 March 2009 and Youssef v. the Netherlands (dec.) no. 11936/08, 27 September 2011). In other words, in order to be reimbursed, the costs must relate to the alleged violation, have been actually and necessarily incurred and be reasonable as to quantum.
The Court notes that the Government produced their unilateral declaration after the applicant’s representative had submitted her observations on the admissibility and merits of the case as well as other pleadings. The Court thus accepts that some of the costs were actually and necessarily incurred. It further notes that according to the conditions of the unilateral declaration, the compensation was to cover these costs. However, the Court considers that the sum proposed by the Government is insufficient for that purpose and decides to use its discretion under Rule 43 § 4 of the Rules of Court (see Scholvien and Others v. Germany (dec.), no. 13166/08, 12 November 2013, Święch v. Poland (dec.), no. 60551/11, 1 July 2013 and Gil v. Poland (dec.), no. 46161/11, 4 June 2013).
Taking note of the costs genuinely and necessarily incurred in the proceedings before it, the Court awards the applicant reimbursement for costs and expenses in the amount of EUR 2,000. 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
Takes note of the terms of the Government’s declaration concerning the applicant’s complaint under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerned the complaints about inhuman and degrading conditions of Mr Zakirov’s pre-trial detention;
Declares the remainder of the application inadmissible;
Holds
(a) that the respondent State is to pay to the applicant, within three months, in addition to the sum contained in the unilateral declaration submitted by the Government on 21 June 2012, EUR 2,000 (two thousand euros) for additional costs and expenses incurred in the proceedings before the Court;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the overall amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
André WampachKhanlar Hajiyev
Deputy RegistrarPresident
Full & Egal Universal Law Academy