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FIRST
SECTION
CASE OF VLADIMIR KOZLOV v. RUSSIA
(Application
no. 21503/04)
JUDGMENT
STRASBOURG
20
May 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kozlov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21503/04) 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 Vladimir Nikolayevich
Kozlov (“the applicant”), on 10 March 2004.
- The
applicant was represented by Ms Y. Liptser and
Mr R. Karpinskiy, lawyers practising in Moscow. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights and Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that he had been detained in
inhuman and degrading conditions in remand prison no. IZ-77/3 in
Moscow.
- On
27 June 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Moscow.
A. Criminal proceedings against the applicant
- On
11 September 1996 Mr Z., the applicant's business partner, was
killed.
- In
1997 Mr Zh. and 17 other persons were charged as an organised group
with numerous counts of robbery and murder, including the murder of
Mr Z. and the planning of the murder of Ms A., Mr Z.'s
girlfriend.
- On
9 April 1997 the applicant was arrested. He was charged with
aiding and abetting the murder of Mr Z. and the planning of the
murder of Ms A. The applicant remained in custody pending
investigation and trial. His case was joined to the case of Mr Zh.
and the others. The applicant's numerous requests to disjoin the
cases were rejected both by the prosecutor and the court.
- On
24 March 1999 the preliminary investigation was completed and
the case file was transferred to the Moscow City Court for
consideration.
- On
6 April 1999 the Moscow City Court scheduled the trial for
20 April 1999.
- The
trial lasted from 6 April 1999 until 18 July 2001. The
court held 82 hearings. On 36 occasions the court adjourned the
proceedings on account of the illness of some of the defendants, a
quarantine in place in their detention facilities or their lawyers'
failure to appear. The proceedings were interrupted twice on account
of a security threat in the courthouse. On six occasions the
proceedings were adjourned on account of clashes in the judge's
schedule, his illness or the authorities' failure to transport the
defendants to the court house.
- On
18 July 2001 the Moscow City Court found the applicant guilty as
charged and sentenced him to eleven years' imprisonment.
- From
20 July 2001 until 15 October 2002 the defendants studied
six volumes of the minutes of the court hearings.
- On
10 September 2003 the Supreme Court of the Russian Federation
heard the case on appeal. The court upheld the applicant's conviction
in substance and reduced his sentence to ten years' imprisonment.
B. Conditions of the applicant's pre-trial detention
1. Lefortovo remand prison
- From
26 November 1997 to 17 August 2001 the applicant was
detained in Lefortovo remand prison. He was held in a cell measuring
8 sq. m and had to share it with one or two other inmates. There
was no hot water or shower facility in the cell. A partition
separating the toilet from the living area of the cell was installed
only in 1999.
2. Remand prison no. 77/3
- On
17 August 2001 the applicant was transferred to remand prison
no. IZ-77/3 where he was detained until October 2003.
(a) Description provided by the applicant
- According
to the applicant, the cell where he was detained measured 33 square
metres and was equipped with twenty-four bunk beds. The minimum
number of inmates detained with the applicant at any one time was
twenty-three. In August 2001 the cell housed forty inmates; that
number had increased to forty-seven by the end of the year. The
inmates took turns to sleep due to the lack of beds. By the beginning
of 2003 twenty-three inmates were kept in the cell. The cell did not
have any ventilation. It was stiflingly hot in the summer and very
cold in the winter. Most of the inmates smoked and the applicant, a
non-smoker, was exposed the tobacco smoke of others. The cell was
infested with cockroaches and lice. Disinfection of the cell was
performed once every three months and was to no avail. The television
and the light were constantly on. Window panes were installed only in
late 2002. The toilet was elevated from the floor by 0.5 metres. It
was separated from the living area of the cell by a partition
measuring one metre in height. The person using the toilet could be
seen by both the inmates and the guards watching the inmates through
the peep-hole in the door. The dinner table was some four metres away
from the toilet. On several occasions HIV-infected inmates were
placed in the cell. The applicant was allowed to take a 20-minute
shower once a week. On one occasion between December 2001 and January
2002 the applicant did not have the opportunity to take a shower for
three weeks. He was allowed to be outside for approximately one hour
per day. The meals were of poor quality.
(b) Description provided by the Government
- According
to the Government, at all times the applicant was afforded at least 4
sq. m of living space. In particular, the Government provided
the following data concerning the cell measurements:
-
|
Cell number
|
Cell surface area
|
|
404
|
19.2 sq. m
|
|
410
|
32.4 sq. m
|
|
406
|
32.4 sq. m
|
|
407
|
32.4 sq. m
|
|
507
|
32.7 sq. m
|
|
519
|
32.7 sq. m
|
- Each
cell had a window measuring 0.89 by 0.94 metres. The windows were
equipped with vents which could be kept open to let additional fresh
air in. The ventilation system functioned properly. Upon arrival at
the remand prison, the applicant was provided with two bed sheets, a
mattress, a blanket, a pillow, a pillow case, a towel, and cutlery.
Each cell had a water heater and a potable water tank. The remand
prison was equipped with a central water supply, sewage system,
ventilation and lighting. In the day the lighting was on from 6 am to
10 pm. At night lower-voltage bulbs were used to maintain lighting
for surveillance and safety reasons. The inmates were allowed to
watch TV between 6 am and 10 pm. The use of the TV during the
night-time was prohibited. The average temperature in the cells did
not fall below +180C during the winter and did not exceed
+200C during the summer. Window panes were installed for
autumn and winter.
- Each
cell had a toilet, a sink, a table and benches. The toilet was
separated from the living area of the cell by a one-metre-high
partition and a screen to ensure the privacy of the person using the
toilet. The applicant could take a shower once a week for at least
fifteen minutes.
3. Confinement at the courthouse
- During
the time of the trial, that is from 6 April 1999 to 18 July
2001, on the days of the court hearings the applicant was held in
custody at the courthouse.
(a) Description provided by the applicant
- The
cells at the courthouse measured 2 sq. m. Each time the
applicant had to share the cell with two or three other persons. The
ventilation system did not function properly and the cells were very
hot in the summer. The applicant was not provided with food at all.
(b) Description provided by the Government
- At
the courthouse the applicant was detained in a cell measuring 1.95 by
1 metres. There was a bench in the cell. The cell was equipped with
ventilation, lighting, and central heating. The metal door had a
peephole. The average temperature in the cell was between 18 and
200C. The applicant was allowed to use the bathroom upon
arrival and before departure or before the start of the court
hearing, if necessary. He was provided with food and hot water.
C. Mass media comment about the applicant's case
- According
to the applicant, numerous newspapers and television channels covered
his arrest and the circumstances of Z.'s murder before the trial was
over.
- A
documentary made by Mr D. about the case was shown at least six times
by one of the nationwide TV channels. The film featured footage of
the applicant and Z. aboard a sea cruiser.
- On
7 March 2002 the prosecutor's office dismissed the applicant's
request for criminal proceedings to be instituted against Mr D.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that his detention pending investigation and
trial in remand prison no. IZ-77/3 and his confinement at the
courthouse during the trial had been in contravention of Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Submissions by the parties
- The
Government noted that the applicant had failed to bring his
grievances to the attention of a competent domestic authority and
considered that his complaint should be rejected for failure to
comply with the requirements of Article 35 § 1 of
the Convention. In particular, they submitted that it
had been open to the applicant to bring his grievances to the
attention of the prosecutor. They cited the following examples from
the domestic practice in support of their position. In response to a
Mr N.'s complaint about the conditions of his detention the
Novosibirsk prosecutor's office conducted an inquiry which confirmed
N.'s allegations that the food rations had been insufficient and the
water supply had been irregular. As a result, the prison
administration renovated the detention facility and purchased medical
supplies. In the Vladimir Region, a special section for detention of
inmates diagnosed with tuberculosis was established following an
NGO's complaint on behalf of a Mr B. In the Khabarovsk Region
the administration of the prison where Mssrs Sh. and Z. were
detained renovated the shower and laundry rooms, upgraded the
ventilation system in the disciplinary block and set up an area for
medical consultations. Alternatively, in the Government's opinion,
the applicant could have brought a civil action for damages resulting
from the conditions of his detention. The Government cited three
cases in this connection. The Yoshkar-Ola Town Court in the Mariy El
Republic granted a Mr S.'s action for compensation for non-pecuniary
damage resulting from a violation of his rights set forth in
Article 3 of the Convention on account of the appalling
conditions of his detention in a remand prison. A Mr D. had been
awarded 25,000 Russian roubles (RUB) in compensation for
non-pecuniary damage arising from the unsatisfactory conditions of
his pre-trial detention. On 23 April 2004 the Zheleznodorozhniy
District Court of Oryol found that a Mr R.'s pre-trial detention
had been unlawful that he had not received food for five days of his
detention. The court awarded Mr R. RUB 30,000.
- The
applicant contested that argument. He submitted that the information
provided by the Government was insufficient to substantiate their
allegations that an effective remedy in fact existed in respect of
the complaint about the conditions of his detention in 2001-2003.
2. The Court's assessment
- In
so far as the applicant's complaint concerns his confinement at the
courthouse during the trial which ended on 18 July 2001, the
Court reiterates that it may only deal with a matter within a period
of six months from the date on which the final decision was taken or
the event occurred. The applicant lodged his application on 10 March
2004. It follows that this complaint has been lodged out of time and
must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
- As regards the Government's objection concerning the
applicant's alleged failure to exhaust domestic remedies in respect
of his complaint about the conditions of his detention in remand
prison no. IZ-77/3, the Court observes that in the case of
Benediktov, in comparable circumstances, it found that the
Government had failed to demonstrate what redress could have been
afforded to the applicant by a prosecutor or a court, taking into
account that the problems arising from the conditions of the
applicant's detention had apparently been of a structural nature and
had not concerned the applicant's personal situation alone (see
Benediktov v. Russia no. 106/02, §§ 29-30,
10 May 2007).
- The Court also notes that the Government have already
raised the issue of non-exhaustion, referring to the same domestic
case-law in a number of Russian cases concerning conditions of
detention in Russia. The Court has examined and dismissed them,
finding the said remedies ineffective (see, for example, Aleksandr
Makarov v. Russia, no. 15217/07, §§ 76-91,
12 March 2009). The Court discerns nothing in the Government's
submissions which would persuade it to depart from its earlier
finding. It follows that the applicant was not required to exhaust
the domestic remedies, indicated by the Government, and the
Government's objection must be dismissed.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
- Relying
on the certificates issued by the remand prison administration in
August and September 2008, the Government submitted that the
conditions of the applicant's detention in remand prison no. IZ-77/3
in Moscow had been in compliance with Article 3 of the
Convention. At all times the applicant had been afforded at least 4
sq. m of personal space. According to the Government, it was not
possible to provide any further detail, such as the number of persons
detained in each cell together with the applicant and/or the number
of sleeping places there, because all the official records had been
destroyed after the expiry of the statutory period for their storage
and the renovation of the remand prison carried out in 2005-2006.
- The
applicant maintained his complaint. He reiterated that he had been
detained in severely overcrowded cells where he was afforded no more
than 0.83-1.4 sq. m of personal space. He further referred to the
case of Belevitskiy (see Belevitskiy v. Russia, no.
72967/01, 1 March 2007) where the Court had found a violation of the
applicant's rights set out in Article 3 of the Convention on
account of severe overcrowding of the cells in the same remand
prison.
2. The Court's assessment
- The
Court reiterates that Article 3 enshrines one of the fundamental
values of democratic society. The Convention prohibits in absolute
terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances or the victim's behaviour (see,
among other authorities, Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must in any event go beyond the inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment. Although measures depriving a person of liberty may often
involve such an element, in accordance with Article 3 of the
Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła, cited
above, §§ 92-94).
- Turning
to the facts of the instant case, the Court notes that the parties
disagreed as to most aspects of the conditions of the applicant's
detention. However, there is no need for the Court to establish the
veracity of each and every allegation, because it can find a
violation of Article 3 on the basis of the facts presented to it
by the applicant, which the respondent Government failed to refute
(see Grigoryevskikh v. Russia, no. 22/03, § 55, 9
April 2009).
- In
particular, the Court observes that the Government was unable to
provide any information as to the number of inmates detained together
with the applicant and/or the number of sleeping places in the cells
where he had been detained, since the remand prison records
pertaining to the period of the applicant's detention there had been
destroyed after the expiry of the time-limit for their storage.
Nevertheless, the Government refuted the applicant's allegations,
stating that at all times the applicant had been afforded at least 4
sq. m of personal space. Their assertion was based on the
certificates issued by the remand prison administration in 2008.
- In
this connection, the Court notes that on several previous occasions
when the Government have failed to submit original records, it has
held that documents prepared after a considerable period of time
cannot be viewed as sufficiently reliable given the time that has
passed (see, among recent authorities, Novinskiy v. Russia,
no. 11982/02, § 105, 10 February 2009). The Court
opines that these considerations hold true in the present case. The
certificates prepared by the Russian authorities almost five years
after the events in question cannot qualify as sufficiently reliable
sources of data.
- The
Court further reiterates that in certain instances the respondent
Government alone have access to information capable of corroborating
or refuting the applicant's allegations under Article 3 of the
Convention and that a failure on the Government's part to submit such
information without a satisfactory explanation may give rise to the
drawing of inferences as to the well-foundedness of the applicant's
allegations (see Ahmet Özkan and Others v. Turkey, no.
21689/93, § 426, 6 April 2004). Accordingly, the Court will
examine the issue concerning the alleged overcrowding of the cells on
the basis of the applicant's submissions.
- The
Court accepts the applicant's statement that the cells in the remand
prison where he was detained pending trial were constantly
overcrowded. The space they afforded did not exceed 1.42 sq. m
per person. On certain occasions it was as low as 0.7 sq. m.
Besides, the number of sleeping places was insufficient and the
inmates had to take turns to sleep. The applicant spent approximately
two years and two months in such conditions.
- The
Court reiterates that irrespective of the reasons for the
overcrowding, it is incumbent on the respondent Government to
organise their custodial system in such a way as to ensure respect
for the dignity of detainees, regardless of financial or logistical
difficulties (see Mamedova v. Russia, no. 7064/05, §
63, 1 June 2006, and Benediktov v. Russia, no. 106/02,
§ 37, 10 May 2007).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees (see,
among other authorities, Belevitskiy v. Russia, no. 72967/01,
§§ 75 et seq., 1 March 2007; Kalashnikov v. Russia,
no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Khudoyorov v.
Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X;
Labzov v. Russia, no. 62208/00, §§ 44 et seq.,
16 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39
et seq., 20 January 2005; and Novoselov v. Russia,
no. 66460/01, §§ 41 et seq., 2 June 2005).
- Having
regard to its case-law on the subject and the materials in its
possession, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant's detention in remand
prison no. IZ-77/3 in Moscow between 17 August 2001 and
October 2003, which it considers were inhuman and degrading within
the meaning of this provision.
- In
view of the above finding, the Court does not consider it necessary
to examine the remainder of the parties' submissions concerning other
aspects of the conditions of the applicant's detention in remand
prison no. 77/3 in Moscow.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 3 of the Convention about
the conditions of his detention in Lefortovo remand prison; under
Article 5 § 3 of the Convention that his
pre-trial detention had been unreasonably long; under Article 6 § 1
of the Convention about the length of the criminal proceedings
against him; under Article 6 § 2 of the
Convention that numerous publications and television programmes had
portrayed him as an accessory to murder before he had been convicted;
under Article 6 § 3 (c) of the Convention
that he had been unable to prepare his defence due to the inhuman
conditions of his pre-trial detention; and under Article 8 of
the Convention that one of the television channels had showed a
documentary about the case and that the court had admitted as
evidence and watched a videotape featuring scenes from his private
life.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence ratione temporis,
the Court finds that there is no appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the applicant's allegations should not give
rise to an award of compensation for non-pecuniary damage. In any
event, they considered the applicant's claims excessive and suggested
that the acknowledgment of a violation would constitute sufficient
just satisfaction.
- The
Court accepts that the applicant suffered humiliation and distress
because of the inhuman and degrading conditions of his detention. In
these circumstances, the Court considers that the applicant's
suffering cannot be compensated for by a mere finding of a violation.
Making its assessment on an equitable basis, it awards him EUR 15,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 32,000 Russian roubles (RUB) for the costs and
expenses incurred before the domestic appeal court, RUB 5,680
for the preparation of the application form and RUB 34,000 for
the costs and expenses incurred for the proceedings before the Court
after the complaint had been communicated to the Government.
- The
Government did not comment.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 850 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant's detention between 17 August 2001 and October
2003 in remand prison no. 77/3 in Moscow admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable;
(ii) EUR 850
(eight hundred and fifty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
