CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 décembre 2010

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page-break-inside:avoid; page-break-after:avoid } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s82D7B801 { width:22.93pt; display:inline-block } .sF9287AF { width:174.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION             CASE OF ROMOKHOV v. RUSSIA   (Application no. 4532/04)           JUDGMENT     STRASBOURG   16 December 2010       FINAL   20/06/2011     This judgment has become final under Article   44 §   2 (c) of the Convention. It may be subject to editorial revision. In the case of Romokhov v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 25 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 4532/04) 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 Stanislav Fedorovich Romokhov (“the applicant”), on 5 January 2004. 2.     The applicant, who had been granted legal aid, was initially represented by Mr A. Koss and subsequently by Ms E. Khramova, lawyers practising in Kaliningrad. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been detained in inhuman conditions and had not been provided with requisite medical treatment while in detention, which had caused his blindness, in breach of Article 3 of the Convention. 4.     On 28 May 2008 the President of the First Section decided to communicate the above mentioned complaints to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1951 and lives in the city of Kaliningrad, in the Kaliningrad Region. A.     Criminal proceedings against the applicant 1.     The applicant's arrest 6.     On 15 August 2002 the applicant and two other persons were arrested in Moscow on suspicion of drug trafficking during an undercover police operation. 7.     According to the applicant, the police officers allegedly ill-treated him during the arrest, planted a sachet of drugs into his pocket, and took his money and car documents. 8.     On 17 August 2002 the Ostankinskiy District Court of Moscow authorised the applicant's placement in custody. On 19 August 2002 the applicant lodged an appeal against that detention order but it was never examined. 9.     On an unspecified date the investigating authorities allegedly seized the applicant's car. 2.     Trial 10.     On an unspecified date the applicant was charged with drug trafficking and the case was transferred to the Ostankinskiy District Court of Moscow for trial. 11.     On 28 March 2003 the Ostankinskiy District Court found the applicant guilty of having acquired, transported and sold drugs in an organised criminal group on a particularly large scale. The court established that the applicant, his two co-accused and several other persons had organised a criminal group with a view to drug trafficking. The applicant had transported the drugs and had surveyed the sales. Before the court, he claimed that he had never sold drugs and that the undercover agents had planted them on him. The court dismissed the applicant's submissions, relying on the testimonies of his co-accused and the police officers, including anonymous witness A., and other physical evidence. It sentenced the applicant to nine years' imprisonment and a confiscation of property. 12.     On 22 July 2003 the Moscow City Court upheld the judgment. B.     Conditions of the applicant's detention 1.     The applicant's account (a)     Remand centre IZ-77/2 in Moscow 13.     From 17 August 2002 to 2 April 2003 the applicant had been held in remand centre IZ-77/2 in Moscow. 14.     For the first ten days the applicant was held in cell no. 157 where the conditions of detention were satisfactory. 15.     On 28 August 2002 the applicant was transferred to cell no. 283 which was designed for six persons and had five or six bunks but accommodated eight inmates. The applicant was afforded less than one square metre of cell space. For six months he did not have daily walks. He was not provided with bedding. The lavatory was not separated from the living area and was two metres away from the dining table and one metre away from the bunks. The windows were covered with bars and metal shutters which limited access to natural light. In December 2002, while the outside temperature dropped to between -20º and -28ºC, the cell was not heated; the walls were covered with frost and the applicant had to sleep in his jacket. In November and December 2002 he did not have access to shower. The cell was full of smoke because all inmates smoked, the applicant being a non-smoker. The cell was infested with lice and cockroaches. The applicant's complaints to the administration were left without reply. 16.     On an unspecified date after the trial the applicant was transferred to a cell for convicts where four to five detainees had to share one bunk and slept in shifts. (b)     Remand centre IZ-77/3 in Moscow 17.     From 2 April to 16 August 2003 the applicant was held in remand centre IZ-77/3 in Moscow, firstly in cell no.   213 and later in cell no. 714. 18.     Cell no. 213 was designed for 30 persons but housed over one hundred inmates. The detainees had to sleep in shifts. The applicant was not provided with bedding. The cell swarmed with lice, bugs and cockroaches but the administration did not provide disinfectants. The lights and the TV were always on. The cell had no ventilation and was filled with smoke. The applicant constantly suffered from hypertension and nose bleeding, developed dermatitis and lost over twenty kilograms in weight. As a result of the inflammation of his sciatic nerve and aggravation of radiculitis, his legs became numb, limiting his ability to move. 19.     On an unspecified date the applicant was transferred to cell no. 714 in the medical wing of the remand centre where he was given anti ‑ hypertensive medications and received anaesthetic injections to relieve him from pain. (c)     Remand centre IZ-67/1 in Smolensk 20.     From 17 to 28 August 2003 the applicant was detained in remand centre IZ-67/1 in Smolensk. 21.     The cell where the applicant was detained had three-tier bunks, two detainees sharing one bunk. No bedding was provided. The cell was smoky and infested with insects. The lavatory was not separated from the living area. (d)     Hospital no. 1 of prison IK-8 in Kaliningrad 22.     From 27 October 2004 to 16 February 2005 the applicant stayed in hospital no. 1 of prison IK-8 in Kaliningrad. He was not provided with bedding or any hygiene items. His cells swarmed with lice, bugs and cockroaches and the applicant developed dermatitis. The applicant was held together with Sh., suffering from schizophrenia and advanced tuberculosis and a HIV-positive detainee who had bleeding wounds on his body and used common tableware. He was also kept together with inmates having infectious hepatitis. The food and water were of bad quality and the applicant was deprived of a daily walk. 2.     The Government's account (a)     Remand centre IZ-77/2 in Moscow 23 .     Referring to certificates issued by the head of remand centre IZ-77/2 and dated 21 and 29 July 2008, the Government stated that in 2002-2003 the maximum capacity of remand centre IZ-77/2 had been 2,110 persons. At the material time the remand centre had accommodated 3,194 detainees. The applicant had been detained in cell no. 150 measuring 57.9 square metres and cell no. 283 measuring 10.5 square metres. 24.     With reference to the above certificates, the Government submitted that the applicant had at all times been provided with at least 4 square metres of cell space, a personal sleeping place and bedding. His cells had been sufficiently lit and ventilated and properly heated in winter. The metal shutters in all of them had been removed pursuant to an instruction of the Ministry of Justice of the Russian Federation of 26 November 2002. The cells had been permanently disinfected and the cell windows had been glazed in winter. The applicant had had weekly access to a shower and his bedding had been replaced accordingly. 25.     The Government stated that it had been impossible to indicate the exact number of persons who had been held together with the applicant in his cells owing to the destruction of the logbook containing the headcount of detainees held in the remand centre ( книга количественной проверки лиц, содержащихся в следственном изоляторе ). 26 .     The Government also provided a barely legible copy of the applicant's cell record card ( камерная карточка ), according to which he had been provided with bedding and cutlery. (b)     Remand centre IZ-77/3 in Moscow 27.     At the time of the applicant's detention in remand centre IZ-77/3 in Moscow, the centre's maximum capacity had been 1,250 inmates. The applicant had been held there in cells nos. 202, 213 and 704, measuring, respectively, 32.7 square metres, 28.5 square metres and 36.2 square metres. 28.     With reference to certificates issued by the head of remand centre   IZ-77/3 dated 22 and 31 July 2008 and the applicant's cell record card, the Government submitted that the applicant had been at all times provided with at least 4 square metres of cell space, a personal sleeping place and bedding. His cells had been sufficiently lit and ventilated and properly heated in winter. The metal shutters in all of them had been removed pursuant to an instruction of the Ministry of Justice of the Russian Federation of 26 November 2002. The cells had been permanently disinfected and the cell windows had been glazed in winter. The applicant had had weekly access to a shower and his bedding had been replaced accordingly. 29 .     The Government stated that it had been impossible to indicate the exact number of persons who had been held together with the applicant in his cells owing to destruction of the logbook containing the detainee headcount. 30.     The Government enclosed copies of records of the destruction of documents from IZ-77/3 dated 20 September 2005 and 10 April 2006. According to the first record, on 20 September 2005 an official commission of remand prison IZ-77/3 had destroyed the following documents: lists of prisoners participating in the detention facility's household activities ( списки осужденных, используемых на хозяйственных работах ), daily orders concerning security and control ( суточные приказы по охране и надзору ), guard reports ( постовые ведомости ), check lists ( проверочные списки ), regulations on the structural subdivisions of certain internal affairs entities ( положения о структурных подразделениях органов внутренних дел ), and correspondence with various organisations. According to the report of 10 April 2006, on that date a commission consisting of officials of IZ-77/3 had destroyed the following documents: documentation concerning the facility's personnel drills ( документы учебных тренировок с личным составом ), records of planned and control searches ( акты плановых и контрольных обысков ), lists of prisoners participating in the detention facility's household activities, a plan of supervision of IZ-77/3 ( план надзора ИЗ-77/3 ), correspondence with various organisations, and copies of orders given by the head of IZ-77/3. (c)     Remand centre IZ-67/1 in Smolensk 31.     While the applicant had been detained in remand centre IZ-67/1 in Smolensk, the capacity of that detention facility had been 945 detainees and it had accommodated 894 inmates throughout 2003. In remand centre   IZ ‑ 67/1 the applicant had been detained in cell no.171 measuring 17.5   square metres. 32.     The Government made further submissions concerning the material conditions of the applicant's detention in IZ-67/1 similar to their statements concerning remand centres IZ-77/2 and IZ-77/3 summarised above. (d)     Hospital no.1 of IK-8 in Kaliningrad 33.     The Government made no submissions concerning hospital no. 1 of IK-8 in Kaliningrad. C.     Alleged defects in the applicant's medical treatment 34.     In August 2004 the applicant allegedly asked for dental treatment and paid for it. After several consultations the head of the colony's hospital allegedly refused to continue the treatment, which caused the applicant physical and mental suffering because he was unable to eat. 35.     On 11 August 2004 the applicant complained to the colony hospital about the rapid deterioration of his eyesight but was refused any treatment. 36.     One month later, when the applicant was practically unable to move by himself, the administration authorised an ophthalmologist paid by the applicant's wife to examine the applicant. He was diagnosed with retinal detachment in both eyes and urgent surgery was recommended. 37.     In October 2004 the applicant was transferred to hospital no.   1 of IK-8 in Kaliningrad. 38.     It appears that despite the applicant's repeated requests he was not examined by any specialist until December 2004. 39.     On 20 December 2004 an ophthalmologist examined the applicant and diagnosed him with total retinal detachment in both eyes. 40.     On 22 December 2004 a medical panel established that the applicant's illness was incompatible with his continued detention. He was discharged from the hospital on 16 February 2005. 41 .     On 18 April 2005 the applicant was granted disability status in connection with his loss of sight. 42 .     By a decision of 13 May 2005, the Tsentralny District Court of Kaliningrad ordered the applicant's release from custody owing to health reasons. It appears that he was released on the same day. D.     Proceedings for compensation of damage caused by refusal of eye treatment 43.     In March 2006 the applicant issued proceedings against colony IK-9, colony IK-8 and the Ministry of Finance, claiming compensation in the amount of 50,000 euros (EUR) in respect of non-pecuniary damage sustained as a result of the refusal to provide him with medical treatment, which had in turn caused him to lose his eyesight. It transpires that throughout the proceedings the applicant was represented by a lawyer that he had appointed. 44 .     By a judgment of 26 March 2007 the Tsentralny District Court of Kaliningrad granted the applicant's claims in part. The judgment, in so far as relevant, reads: “... It follows from the reply of the head of the medical unit of the Kaliningrad regional department of the Federal Service for the Execution of Sentences... dated 4   April 2005, [the applicant] had been under medical supervision in the medical unit of colony OM-216/9 from 10 September 2003. Upon admission he was examined by a medical panel which concluded that his state of health was satisfactory. Since autumn   2004 [the applicant] had started noticing a rapid deterioration of his eyesight. On 20 October 2004 he was examined by an ophthalmologist. The preliminary diagnosis was: “secondary retinal detachment in both eyes?” To confirm the diagnosis [the applicant] was admitted to hospital no.1 where he stayed from 1 December 2004 to 16 February 2005 and received an in-patient clinical and X-ray examination. The diagnosis was confirmed: “total retinal detachment in both eyes”. ... Witness S. interviewed by the court submitted that she had examined [the applicant] on his wife's request in colony IK-9 on 20 October 2004 when she had diagnosed him with [retinal detachment in both eyes]. She had indicated that he needed an additional examination in a hospital. ... The medical expert panel in its report no.   98 established the following. The materials available [to the medical panel] do not enable it to establish the exact period of time when [the applicant] acquired the illness which had entailed declaring him disabled. However it is reasonable to assume that the illness (total retinal detachment in both eyes, in respect of which disability status was granted [to the applicant]) started developing on 15 June 2004 when [the applicant] first complained of periodic blinking of dark spots in his eyes and deterioration of his eyesight. After examining the case materials and the medical documents, the panel discovered grave defects in the diagnostics and medical treatment during [the applicant's] stay in hospital no.1: -           in spite of the applicant's complaints of deterioration of his eyesight and the ophthalmologist's request for his additional examination in connection with the diagnosis of secondary retinal detachment in both eyes made on 27 October 2004, [the applicant] was not examined in due time. He was only examined on 20 December 2004 – that is, two months after his admission to the hospital, which had major implications and negative consequences for his eyesight. -           At the examination in hospital after the diagnosis of “total retinal detachment in both eyes”, [the applicant] did not undergo the ultrasound eye scanning ordered on 20 December 2004. The scanning was indispensable for establishing the origin of his illness, which could have been caused by a trauma, a tumour, myopia, or excessive physical effort. According to the conclusion of the special medical panel, [the applicant] suffers from total retinal detachment in both eyes which has caused total blindness. It is impossible to establish the exact reason of this condition owing, in particular, to the defects in [the applicant's] examination and treatment in hospital no.1. ... According to the clinical data available in [the applicant's] medical file, in 2000 he suffered from slight myopia in both eyes – 0.2 in the right eye and 0.1 in the left eye, corrigible to 1.0. Moreover, the development of the applicant's eye problems permits the expert panel to conclude that heightened tension was not the reason for him developing total two-sided retinal detachment. The [applicant's] illness, which entailed his disability, has a clear causal connection with the defects in his medical treatment. Despite the fact that the exact reason for [the applicant's illness] could not be identified, grave defects of examination and treatment took place. During the first examination by an ophthalmologist on 20 October 2004 the latter diagnosed [the applicant] with two-sided retinal detachment with a retained pink reflex of the pupil, which indicates that at that moment [the applicant] did not suffer from total retinal detachment and, if treated in due time, a positive outcome including partial preservation of eyesight could not have been excluded. At the examination on 20   December 2004 [the applicant] was already diagnosed with total two-sided retinal detachment. Hence, the delays in providing [the applicant] with qualified ophthalmologic surgery played a crucial rule in his becoming blind. Bearing in mind the above mentioned circumstances of the case, the court considers that grave defects in the applicant's examination and treatment while in detention, which had caused his blindness, caused him physical and mental suffering. Under those circumstances the court, taking into account the character of the mental and physical suffering sustained by [the applicant] as a result of his inadequate medical treatment during the service of his prison sentence, which had caused his blindness, considers it appropriate to award him 300,000 Roubles in respect of non-pecuniary damage against the Ministry of Finance of the Russian Federation.” 45.     By a special decision ( частное определение ) taken on the same date as the above-mentioned judgment, the Tsentralny District Court called on the head of Federal Service for the Execution of Sentences (“the FSES”) and the head of the Kaliningrad regional department of the FSES to pay attention to the fact that the examination of the applicant's case had revealed the lack of proper organisation of medical treatment for convicts in the colonies of the Kalningrad Region, which seriously endangered their life and health. Both officials were requested to inform the court of the measures taken in that respect within the time-limits provided by the relevant national legislation. 46.     The outcome of that request remains unclear. 47 .     On 30 May 2007 the Kaliningrad Regional Court dismissed the prosecutor's appeal against the judgment of 26 March 2007. In particular, it rejected the prosecutor's argument that the amount of the award was excessive and found that it was reasonable and adequate. 48 .     The judgment of 26 March 2007 and the appeal decision of 30 May 2007 referred to the applicant's family name as “Romakhov” instead of “Romokhov”. E.     Enforcement of the judgment of 26 March 2007 1.     The Government's account 49.     On 30 May 2007 the judgment of the Tsentralny District Court of Kaliningrad became final and enforceable. 50.     On 24 August 2007 the Ministry of Finance of the Russian Federation received unspecified “enforcement documents” from the applicant in respect of the above judgment. 51.     On 17 October 2007 the Ministry of Finance received further unspecified “enforcement documents” from the applicant. 52.     By a letter of 21 November 2007 the Ministry of Finance returned the first set of documents to the applicant because he had failed to enclose a duly certified copy of the judgment and his bank details. 53.     By a letter of 5 December 2007 the Ministry returned the second set of documents to the applicant because he had again failed to submit a duly certified copy of the judgment and his bank details. 54.     On 13 February 2008 the Ministry of Finance received the required documents. 55.     On 29 May 2008 the amount of 300,000 Russian roubles (RUB) was transferred to the applicant's bank account. 56 .     In support of their submissions the Government furnished a copy of the payment order of 29 May 2008, according to which the amount of RUB   300,000 had been transferred to the applicant's account on that date. 2.     The applicant's account 57.     According to the applicant, the delay in the execution of the judgment of 26 March 2007 had been caused by the fact that the first-instance court had misspelled his family name as “Romakhov” instead of “Romokhov”, both in the first-instance judgment and the related writ of enforcement. II.     RELEVANT DOMESTIC LAW A.     Rules on the prison regime in pre-trial detention centres (as approved by Ministry of Justice Decree no. 148 of 12 May 2000) 58.     Rule 42 provided that all suspects and accused persons in detention had to be given, amongst other things: a sleeping place; bedding, including a mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own). 59.     Rule 44 stated that cells in pre-trial detention centres were to be equipped with, amongst other things, a table and benches to seat the number of inmates detained there, sanitation facilities, running water and lighting for use in the daytime and at night. 60.     Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia. 61.     Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower. 62.     Rule 143 provided that inmates could be visited by their lawyer, family members, or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month. B.     Order no. 7 of the Federal Service for the Execution of Sentences dated 31 January 2005 63.     Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with the implementation of the “Pre-trial detention centres 2006” programme. 64.     The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. Amongst those affected, the programme mentions pre-trial detention centre SIZO no. 3 (IZ-77/3). III.     RELEVANT COUNCIL OF EUROPE DOCUMENTS 65.     The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: Extracts from the 2nd General Report [CPT/Inf (92) 3] “46.     Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47.     A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48.     Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49.     Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50.     The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51.   It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” Extracts from the 7th General Report [CPT/Inf (97) 10] “13.     As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph   46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” Extracts from the 11th General Report [CPT/Inf (2001) 16] “28.     The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29.     In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large­capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30.     The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION 66.     The applicant complained under Article 3 of the Convention that the conditions of his detention in remand centres IZ-77/2 and IZ-77/3 in Moscow, hospital no. 1 of IK-8 in Kaliningrad and remand centre IZ-67/1 in Smolensk were in breach of that provision. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Submissions by the parties 1.     The Government 67.     The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaints about the conditions of his detention because he had not raised them before the prosecutors or domestic courts. In the alternative, they submitted that the applicant had not complied with the six-month requirement in respect of the period of his detention prior to 5   July 2003. In that respect they claimed that, as a rule, detainees had been held in different cells during their detention – even in the same remand centre. Conditions of detention in those cells had varied and thus, they could not be regarded as having been the same throughout the whole period of detention. 68.     On the merits, they argued that, although they could not provide the documents attesting to the exact number of inmates in the applicant's cells owing to their destruction, in all detention facilities mentioned by the applicant he had been afforded 4 square metres of cell space in accordance with the relevant domestic regulations. He had been provided with an individual sleeping place and bedding. The cells had been sufficiently lit, ventilated, heated and disinfected. The toilet had been separated from the living area and the applicant's access to a shower had been secured according to the regulations in force, which had also given him the possibility of taking daily walks. 2.     The applicant 69.     The applicant maintained his submissions. He stated that in Russia there was no opportunity for detainees to challenge their conditions of detention effectively before the domestic authorities. On the merits, he contested the Government's submissions as untrustworthy and false. In particular, if, as the Government argued, remand centre IZ-77/2 had accommodated 3,194 inmates whilst its capacity was 2,120 persons, the applicant could not have possibly been afforded 4 square metres of cell space but had been afforded less than 2 square metres. Furthermore, from the cell space of a particular cell one was to deduct the space used for the cell amenities – such as bunks, the table and the toilet, which left even less cell space per detainee. The applicant and the other detainees had had to sleep in shifts because there had not been enough bunks. The applicant further stated that, contrary to the Government's assertion, he had not been provided with bedding, the windows in his cells had been covered with metal shutters and he had had to sleep in his jacket because it had been extremely cold in winter. B.     The Court's assessment 1.     Admissibility 70.     The Government argued that the applicant had failed to exhaust domestic remedies in respect of the allegedly appalling conditions of his detention. In that respect the Court firstly notes that it is for the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, among other authorities, Kohlhofer and Minarik v. the Czech Republic , nos.   32921/03, 28464/04 and 5344/05, § 77, 15 October 2009). However, the Government have not specified with sufficient clarity the type of complaint which would have been an effective remedy in their view, nor have they provided any further information as to how such a complaint could have prevented the alleged violation or its continuation or provided the applicant with adequate redress. Moreover, in a number of judgments the Court has held that the problem of overcrowding was of a structural nature and thus did not concern the applicants' personal situation (see Guliyev v. Russia , no. 24650/02, § 34, 19 June 2008; Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; and Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI (extracts)). In sum, the Court considers that the Government have not substantiated their claim that the remedy or remedies the applicant allegedly failed to exhaust were effective ones (see, among other authorities, Kranz v. Poland , no. 6214/02, § 23, 17 February 2004). It therefore considers that the applicant's complaints under Article 3 cannot be rejected for failure to exhaust domestic remedies. 71.     The Court has next to examine the Government's argument that the applicant had not complied with the six-month requirement in respect of his complaints about the conditions of his detention. 72.     As regards the applicant's submissions concerning his detention in IZ-67/1 in Smolensk from 17 to 28 August 2003, the Court notes that this complaint was first made in his application form dated 30 November 2005, more than six months after the end of his detention there. Furthermore, the applicant first complained about the conditions of his detention in hospital   no. 1 in Kaliningrad from 27 October 2004 to 16 February 2005 in his letter of 20 August 2005. Having regard to its findings concerning the issue of exhaustion, the Court accordingly concludes that the applicant's complaints about the conditions of detention in IZ-67/1 in Smolensk and hospital no. 1 in Kaliningrad should be dismissed as lodged out of time pursuant to Article 35 §§ 1 and 4 of the Convention. 73.     The Government also invited the Court to dismiss the applicant's complaint about the conditions of his detention before 5 July 2003 as lodged out of time. However, the Court cannot accept their argument for the following reasons. 74.     The gist of the applicant's complaint under Article 3 of the Convention is the allegedly appalling conditions of his detention in remand centres IZ-77/2 and IZ-77/3 in Moscow in the period from 28 August 2002 to 16 August 2003. In particular, he complains on account of the allegedly severe overcrowding in his cells, which existed, according to him, throughout the whole period of his detention in the above-mentioned facilities, as from 28 August 2002. Bearing this in mind, the Court considers that the continuous nature of the applicant's detention on remand and his almost identical description of the general conditions of his detention in both facilities and the allegation of severe overcrowding as the main characteristics of the conditions of his detention warrant examining his detention in the above mentioned time span without dividing it into separate periods (see Igor Ivanov v. Russia , no. 34000/02, § 30, 7 June 2007; Benediktov v. Russia , no. 106/02, § 31, 10 May 2007; and Sudarkov v.   Russia , no. 3130/03, § 40, 10 July 2008). Hence, the Government's argument that the period under Court's consideration should be limited to the time span from 5 July 2003 to 16 August 2003 should be dismissed. 75.     Having regard to the above, the Court dismisses the Government's objection concerning non-exhaustion by the applicant of domestic remedies and his non-compliance with the six-month requirement in respect of his complaint about the conditions of his detention prior to 5 July 2003. The Court also rejects the applicant's complaint about the conditions of his detention in IZ-67/1 in Smolensk and hospital no. 1 of IK-9 in Kaliningrad as lodged out of time pursuant to Article 35 §§ 1 and 4 of the Convention. 76.     As regards the applicant's complaint concerning conditions of his detention in remand centres IZ-77/2 and IZ-77/3 in Moscow from 28   August 2002 to 16 August 2003, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits 77.     The Court notes that the parties have disputed certain aspects of the conditions of the applicant's detention in detention facilities IZ-77/2 and   IZ ‑ 77/3 in Moscow. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article   3 on the basis of facts presented to it which the respondent Government did not refute. 78.     The focal point for the Court's assessment is the living space afforded to the applicant in the detention facilities. The main characteristic which the parties did agree upon was the size of the cells. However, while the applicant claimed that the population of the cells had severely exceeded their design capacity, the Government stated that the applicant had been provided at least 4 square metres of cell space throughout his detention in the above-mentioned detention facilities. In that respect they relied on certificates from the heads of remand centres IZ-77/2 and IZ-77/3, issued in July 2008, and the applicant's cell record cards. They also stated that it was impossible to indicate the exact number of inmates held together with the applicant, owing to the destruction of the relevant logs. 79.     The Court observes in the first place that the Government did not produce any copies of the records of destruction of the relevant logs for facility IZ-77/2. As to the records of destruction of documents regarding facility IZ-77/3, they did not contain any reference to such logs having been among the documents destroyed (see paragraph 29 above). As to the cell cards, they provided only information on the hygiene items supplied to the applicant and appear to be irrelevant to the overcrowding issue. 80.     As regards the certificates issued by the heads of the respective remand centres, the Court considers it rather extraordinary that in July 2008, five years after the applicant's detention in those facilities, their directors were able to recollect how much space had been afforded to the applicant. Hence, those certificates are of little evidential value to the Court (see Belashev v. Russia , no. 28617/03, § 52, 4 December 2008). However, if the registration logs still exist, the Court finds it peculiar that the Government preferred to rely on the director's certificates to support their allegations concerning the conditions of the applicant's detention when it was open to them to submit copies of registration logs showing the names of inmates detained with the applicant (see ibid.). 81.     The Court further takes note of the Government's submission that, whilst facility IZ-77/2 had b