European Court of Human Rights

 

THIRD SECTION

CASE OF ATAYEV v. RUSSIA

(Application no. 39070/08)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2020

 

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

In the case of Atayev v. Russia,

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

          Georgios A. Serghides, President,
          Erik Wennerström,
          Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 39070/08) 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 Anatoliy Atabayevich Atayev (“the applicant”), on 15 August 2008.

2.  The applicant was represented by Ms O.A. Sadovskaya, Mr I.A. Kalyapin, and Mr A.I. Ryzhov, lawyers from the Committee against Torture in Nizhniy Novgorod. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the former 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 27 August 2010 the Government were given notice of the application.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1970 and lives in Krasnodar.

5.  On 11 June 2008 the Leninskiy District Court of Krasnodar convicted the applicant of fraud and sentenced him to five years and one month’s imprisonment. The term of imprisonment started running from the date of his arrest on 4 November 2005.

A.    Court proceedings on the applicant’s conditional release

1.    First-instance court’s decision

6.  In July 2008 the applicant’s representative submitted an application for the applicant’s conditional release.

7.  On 5 August 2008 the Oktyabrskiy District Court of Krasnodar (“the District Court”) allowed the application. The operative part of the decision indicated that it took effect on the date of its pronouncement and could be appealed against to the Krasnodar Regional Court (“the Regional Court”) within ten days of that date.

8.  The management of the facility where the applicant was detained, IZ‑23/1, was informed of the decision of 5 August 2008 on the same date. It refused to release the applicant because “doubts” had been “raised” concerning the decision’s form and lawfulness. The prison governor sent the decision back to the District Court requesting clarification on the matter of its entry into effect.

9.  By a letter of 6 August 2008, the vice-president of the District Court informed the prison governor that the moment of the entry into effect of the decision of 5 August 2008 in the part concerning the applicant’s release - the date of the pronouncement of that decision - was correct and fully corresponded to the Code of Criminal Procedure of Russia (“the CCrP”). The vice-president specified that despite the general rule on the entry into effect of a decision by a first-instance court, decisions on release from pre-trial detention or exemption from serving a sentence were an exception to that general rule and had to be enforced immediately in the part concerning the release of the person concerned. The right of appeal against the decision of 5 August 2008 did not affect the obligation to immediately release the applicant.

10.  The prison administration received the letter on the same date, 6 August 2008, but again refused to release the applicant.

11.  On 7 August 2008 the prosecutor’s office appealed against the decision of 5 August 2008. The statement of appeal did not mention the issue of the decision’s entry into effect.

12.  By a letter of 14 August 2008, the prison governor informed the applicant’s representative that the execution of a court decision to release which raised doubts could be suspended pending additional verification. He mentioned that the exceptions to the general rule on the entry into effect of court decisions referred to by the vice-president of the District Court in his clarification letter of 6 August 2008 did not apply to conditional release. Noting the prosecutor’s office’s appeal against the decision of 5 August 2008, the prison governor concluded that that decision in the part concerning the applicant’s immediate release could not be enforced.

2.    Appeal proceedings

13.  On 10 September 2008 the Regional Court quashed the decision of 5 August 2008. It disagreed with the first-instance court’s assessment that the applicant had mended his ways because during the criminal proceedings against him he had been attempting, among others, to discredit the Russian Federal Security Service and the Prosecutor’s Office. The Regional Court remitted the applicant’s application for conditional release for a fresh examination. It did not examine the issue of the lawfulness of the applicant’s detention from 5 August to 10 September 2008 or the lawfulness of the operative part of the decision of 5 August 2008.

14.  On 1 October 2008 the applicant’s representative withdrew the application for conditional release, considering that it had no prospects of success in view of the Regional Court’s appeal decision. On 9 October 2008 the District Court accepted the withdrawal of the application and terminated the proceedings.

B.     Conditions of the applicant’s detention in the IZ-23/1 prison

1.    General conditions

15.  During his stay in the IZ-23/1 prison in Krasnodar, the applicant was held in overcrowded cells.

2.    Hunger strike

16.  According to medical documents dated 2004 and 2005 the applicant suffered from chronic hepatitis, a duodenal ulcer, gastritis and chronic pancreatitis. He was to follow a special diet and a course of medical treatment.

17.  On 14 August 2008 the applicant informed the authorities that he would go on hunger strike until his release. According to the applicant, he did not receive any medical treatment during his hunger strike.

18.  According to the Government’s letter of 9 September 2008 in reply to the Court’s request for information, the applicant was seen by a doctor on 20, 21 and 22 August 2008. As his state of health was satisfactory and he did not have any medical complaints, no medical assistance was required.

19.  On 23 August 2008 the applicant informed the authorities of the end of the hunger strike.

THE LAW

I. THE GOVERNMENT’S REQUEST TO STRIKE OUT A PART OF THE APPLICATION IN ACCORDANCE WITH ARTICLE 37 § 1 OF THE CONVENTION

20.  The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant under Article 3 of the Convention concerning his conditions of detention.

21.  The Government acknowledged that between 3 April 2007 and 8 October 2008 the applicant had been detained in IZ-23/1 in Krasnodar Region in conditions which did not comply with the requirements of Article 3 of the Convention. The Government offered to pay the applicant a sum of 6,625 EUR and invited the Court to strike that part of his application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months of the date of notification of the Court’s judgment. In the event of a failure to pay that amount within the above‑mentioned three-month period, the Government undertook to pay simple interest on it, from the 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.

22.  The applicant rejected the Government’s offer.

23.  The Court observes that Article 37 § 1 (c) enables it 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.”

24.  Thus, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

25.  The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of detention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012).

26.  Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the application in the part covered by the unilateral declaration (Article 37 § 1 (c)). As the execution of the Ananyev and Others judgment is under the supervision of the Committee of Ministers, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in that part.

27.  Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

28.  In view of the above, it is appropriate to strike the part of the application concerning the inadequate conditions of the applicant’s detention out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

29.  The applicant complained that his detention from 5 August to 10 September 2008 had been unlawful. He relied on Article 5 § 1 of the Convention, which reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court ...”

A.    Admissibility

30.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    Submissions of the parties

(a)    The applicant

31.  The applicant submitted that from 5 August to 10 September 2008 he had been detained in breach of Article 5 § 1 of the Convention. In particular, the court decision of 5 August 2008 had provided that it would take effect on the day of its pronouncement and, thus, the applicant should have been immediately released. Under Russian law generally a court decision usually becomes effective and enforceable after the expiry of the time-limit for an appeal against it or on the day of the appeal decision. However, that general rule had a number of exceptions in that certain listed court decisions came into effect immediately in the part concerning release of the person concerned. The applicant considered that Russian law contained a lacuna in that court decisions on early conditional release were not explicitly mentioned among those court decisions which could be enforced immediately in the part concerning the release of the person concerned. He argued that the lacuna should have been filled in by the analogy of law, as was done by the District Court.

(b)    The Government

32.  The Government submitted that under Russian law a decision of a first-instance court enters into effect and becomes enforceable upon expiry of the time-limit for lodging an appeal against that decision or on the day of the appeal decision. The Government noted that the law had several listed exceptions. However, none of these concerned the eventuality of an early conditional release. Therefore, the District Court in the applicant’s case had not had legal grounds to depart from the general rule and to hold that the release order would be immediately enforceable. Throughout the period in which the applicant’s application for early conditional release had been under examination by the courts, he had been detained on the basis of the original conviction. Therefore, the requirements of Article 5 § 1 of the Convention had been complied with.

2.    The Court’s assessment

33.  The Court reiterates that in order to comply with Article 5 § 1 of the Convention, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this connection the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5 of the Convention, namely to protect individuals from arbitrariness (see, for instance, Stanev v. Bulgaria [GC], no. 36760/06, § 143, ECHR 2012). The Court also reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law.

34.  The Court observes that, according to the applicant, there was a legal lacuna in respect of the moment of entry into effect of court decisions on early conditional release. The Court however does not need to decide in abstracto whether the Russian legislation was deficient in that regard. It is sufficient to note that the District Court, by phrasing the operative part of the early release decision of 5 August 2008 the way it did and by affirming the same in its reply to the prison governor’s request for clarifications, clearly demonstrated that the immediate enforcement of the decision of 5 August 2008 in the part requiring immediate early release of the applicant was a deliberate judicial choice and not a technical or other error. Even though the prosecutor’s office may have disagreed with that decision, it did not raise that matter in its statement of appeal. Nor did the court of appeal rule on that issue. Thus, in the present case a national court provided its interpretation of the relevant domestic law and that interpretation was not overturned by a higher court. However, the prison governor refused to comply with a judicial decision requiring the applicant’s immediate release which was valid (see, mutatis mutandis, Svetoslav Dimitrov v. Bulgaria, no. 55861/00, §§ 57-58, 7 February 2008).

35.  It follows that, in so far as the applicant continued to be detained from 5 August 2008 to 10 September 2008, his detention was arbitrary. There has therefore been a violation of Article 5 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

36.  The applicant complained that he had no right to compensation in respect of his unlawful detention. He relied on Article 5 § 5 of the Convention, which provides as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.    Admissibility

37.  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

1.    Submissions of the parties

38.  The applicant submitted that he would have had the right to compensation only if his detention had been found unlawful. However, in his case his detention had not been declared unlawful by the domestic authorities, so, he had no right to compensation under Russian law.

39.  The Government submitted that, as the applicant had not been detained unlawfully, he had no right to compensation.

2.    The Court’s assessment

40.  The Court reiterates that in accordance with Russian law, an award in respect of pecuniary or non-pecuniary damage may be made against the State only if the detention is found to have been unlawful in the domestic proceedings (see Chuprikov v. Russia, no. 17504/07, § 98, 12 June 2014). In the present case the Court has found a violation of Article 5 § 1 of the Convention in respect of the applicant’s detention from 5 August to 10 September 2008. No domestic court found the applicant’s detention unlawful. He had, therefore, no grounds to claim compensation for the detention which had been effected in breach of Article 5 § 1 of the Convention (see Chuprikov, cited above).

41.  Therefore, the applicant did not have an enforceable right to compensation on account of his unlawful detention, as required under Article 5 § 5 of the Convention. There has accordingly been a violation of this provision.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42.  The applicant further complained about a lack of medical assistance for his health condition and during his hunger strike. He relied on Article 3 of the Convention which provides as follows:

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

A.    Submissions of the parties

43.  The applicant submitted that he suffered from chronic hepatitis, duodenal ulcer, gastritis and chronic pancreatitis. Those diseases required a special diet and medical treatment. The applicant noted that even according to the Government’s submissions he was first examined by a doctor only on 20 August 2008, a week after the beginning of his hunger strike on 14 August 2008. According to Russian law, administration of the detention facility has an obligation to find out the reasons for a hunger strike and inform the investigating and prosecuting authorities about that. If those reasons are well-founded, the authorities should take measures to comply, if possible, with the demands of the detainee or inform him why they cannot satisfy those demands. If possible, the person on a hunger strike should be detained separately from the other detainees and under the supervision of a medical officer. If there is a threat to life of the detainee on hunger strike, a doctor should proscribe a forced treatment to support the detainee’s health. A daily examination is recommended by the World Medical Association.

44.  The applicant informed the local department of the Federal Service of Execution of Sentences and the Prosecutor’s Office about the start of his hunger strike. He received no replies from those authorities. The administration of the detention facility was aware of his chronic diseases. Thus, the authorities knew about the risk of deterioration to the applicant’s health and were required to take active steps on the matter even without the applicant’s complaints. On 23 August 2008 the applicant agreed to stop his hunger strike. Since 26 August 2008 the applicant spent a month in the medical unit of the detention facility receiving treatment for an allergic dermatitis which he did not have before his detention.

45.  The Government submitted, relying on a certificate from the detention facility, that according to the results of the medical supervision of the applicant during the period from 14 to 23 August 2008, his state of health had been satisfactory. The applicant was examined on the following dates:

-  On 14 August 2008 - by a dermatologist, who found no skin disorders and no need for a treatment;

-  On 19 August 2008 - by a therapist, who found no health issues and no need for a treatment; the applicant had no complaints;

-  On 20 August 2008 - by an assistant physician on duty in relation to the hunger strike, who found no pathologies; the applicant had no complaints;

-  On 21 August 2008 - by a therapist in relation to the hunger strike, who considered the applicant essentially healthy and not requiring medical assistance or treatment; the applicant had no complaints;

-  On 23 August 2008 - by an assistant physician on duty in relation to the hunger strike, the applicant had no complaints.

46.  The Government noted that the applicant had not complained to the courts or other State authorities about poor medical assistance.

47.  The Government submitted that the applicant had had medical assistance and treatment appropriate for his health issues throughout the whole period of his detention.

B.     The Court’s assessment

48.  The Court reiterates that even though Article 3 of the Convention does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the State to provide detainees with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 XI; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Popov v. Russia, no. 26853/04, § 211, 13 July 2006; and Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005).

49.  On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).

50.  Turning to the present case the Court notes that, except for submitting certificates confirming his diseases, the applicant did not specify and substantiate the alleged deficiencies in the medical assistance and treatment throughout his detention.

51.  As for the medical assistance provided to the applicant during hunger strike, the Court observes that during the ten days of the hunger strike the applicant was examined by medical staff on five occasions. His state of health was found to be satisfactory and he did not have any complaints. There is nothing in the applicant’s submissions to indicate that the above accounts were not accurate or that he was not provided with any treatment he may have required.

52.  In view of the above, the Court concludes that this complaint is manifestly ill-founded and should be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53.  The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

54.  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

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

56.  The Government submitted that the applicant had not substantiated his claim in respect of non-pecuniary damage. As the applicant’s rights had not been violated, he should not be awarded any compensation. If the Court found a violation of some of the applicant’s rights, a finding of a violation should constitute sufficient just satisfaction.

57.  Having regard to the nature of the violations found and deducting the sum payable under the unilateral declaration (see paragraph 21 above), the Court awards the applicant EUR 3,125 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

58.  The applicant also claimed EUR 5,150 for the costs and expenses incurred before the Court, to be paid to his representatives.

59.  The Government doubted that these expenses had been reasonable and actually and necessarily incurred. Moreover, there was no proof that the applicant had already paid the legal fees.

60.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads for the proceedings before the Court, payable to the applicant’s representatives.

C.    Default interest

61.  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.      Decides, having regard to the terms of the Government’s declaration, and the arrangements for ensuring compliance with the undertakings referred to therein, 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 concerns the complaint under Article 3 of the Convention of the allegedly inhuman conditions of detention;

2.        Declares the complaints under Article 5 §§ 1 and 5 of the Convention admissible and the remainder of the application inadmissible;

3.      Holds that there has been a violation of Article 5 § 1 of the Convention;

4.      Holds that there has been a violation of Article 5 § 5 of the Convention;

5.      Holds

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

(i)         EUR 3,125 (three thousand one hundred and twenty-five euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the applicant’s representatives;

(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;

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

Done in English, and notified in writing on 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                              Georgios A. Serghides
       Registrar                                                                              President