CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 octobre 2014

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s50794FE3 { margin-left:42.72pt; padding-left:7.48pt; font-family:serif } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s67017A4B { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-after:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s30B3B394 { margin-top:36pt; margin-bottom:0pt; text-indent:7.1pt; text-align:left } .sBC646879 { width:9.72pt; text-indent:0pt; display:inline-block } .sFFDA44E1 { width:188.75pt; text-indent:0pt; display:inline-block } .s8F14C0C0 { width:0.49pt; text-indent:0pt; display:inline-block } .sA2E4B800 { width:189.09pt; text-indent:0pt; display:inline-block }       FIRST SECTION             CASE OF ISTRATOV v. RUSSIA   (Application no. 28505/09)                     JUDGMENT     STRASBOURG   16 October 2014   This judgment is final but it may be subject to editorial revision. In the case of Istratov v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Khanlar Hajiyev, President,   Erik Møse,   Dmitry Dedov, judges, and Søren Prebensen, Acting Deputy Section Registrar, Having deliberated in private on 23 September 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 28505/09) 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 Andrey Nikolayevich Istratov (“the applicant”), on 21 April 2009. 2.     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.     On 13 April 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1982 and lived in Novocheboksarsk before the arrest. A.     Conditions of detention 5.     On 20 November 2008 the applicant was remanded in custody on suspicion of rape. 6.     Between 22 November 2008 and 7 September 2009 the applicant was held in remand prison IZ-77/3 in Moscow. The parties submitted differing information about the material conditions of his detention. 7 .     The applicant claimed that the facility was overcrowded. Cell   517, in which he stayed throughout his detention, measured 24   sq.   m and accommodated up to twelve inmates. Walls were mouldy and the lavatory pan was not separated from the rest of the cell. Ventilation did not function; no toiletries were distributed and the bedding was ragged. The food was of low quality. The detainees were allowed to take a shower only once per week. In support of his allegations, the applicant submitted two identically ‑ worded statements by his cellmates, who – without further detail   – declared that they “fully support[ed] Mr Istratov’s complaint to the European Court”. 8 .     The Government submitted a number of certificates issued by the director of remand prison IZ-77/3 on 18 June 2012, which demonstrated that the applicant was held in four cells having the following characteristics: cell 608, which measured 34.11 sq. m, was equipped with 8 sleeping places and actually hosted between 5 and 8 inmates; cell 207, which measured 32.17 sq. m, was equipped with 8 sleeping places and accomodated between 6 and 8 detainees; cell 517, which measured 37.07 sq. m, was equipped with 9 sleeping places and hosted between 6 and 9 inmates; cell 510, which measured 13.22 sq. m, was equipped with 2 sleeping places and held the same number of detainees. It follows from the certificates that the applicant was provided with bedding and toiletries and afforded daily one-hour-long outdoor exercise, a weekly shower and access to washing facilities. There was forced ventilation and artificial lighting in the cells. In addition, the windows were not covered by shutters, allowing natural light to penetrate into the cells, and were equipped with a small opening pane that provided access to fresh air. Lavatory pans were separated from the rest of the cells by a brick partition and were located two metres away from dining tables. In addition, all four cells were equipped with a water tap with hot and cold running water. Heating was provided during the winter season. 9 .     The Governement also submitted copies of the prison population register which covered two weeks out of each month during the period of the applicant’s detention and presented the following information about the numbers of sleeping places in the cells and their actual occupancy: cell 608 was equipped with 8 sleeping places and held a maximum of 6 detainees; cell 207 was equipped with 14 sleeping places and held between 4 and 8 inmates; cell 517 was equipped with 5 sleeping places and held a maximum of 5 detainees; cell 510 was equipped with 3 sleeping places and held 2 inmates. 10 .     It appears that the applicant complained to the Moscow city prosecutor about the conditions of his detention. In his reply of 14   December 2010 the prosecutor acknowledged that “not every detainee was afforded the [statutory] standard of four square metres due to overpopulation of the prison”. 11 .     Some time later the applicant brought a civil claim for compensation in connection with inadequate conditions of detention in remand prison IZ ‑ 77/3. On 7   June 2012, the Khoroshevskiy District Court of Moscow examined the claim and held that: “According to a prison population certificate issued by the director of remand prison IZ-3 of Moscow, cell 608 measures 34.02 sq. m and is equipped with 12 sleeping places. Cell 207 measures 31.17 sq. m and is equipped with 14 sleeping places. Cell 517 measures 37.75 sq. m and is equipped with 12 sleeping places and cell 510 measures 13.45 sq. m and is equipped with 4 sleeping places. It follows from the case file that Mr Istratov was always provided with a separate sleeping place and that the number of detainees never exceeded that of sleeping places. ... It was established ... that the applicant’s argument about the overpopulation of the cells he had been held in, [affording as a result] less than 4   sq.   m per person, had been substantiated. However, considering that Mr Istratov did not complain that he had been afforded personal space below the sanitary standard (4 sq. m) ... and was always provided with a separate sleeping place ... the court considers it appropriate to reject Mr Istratov’s claim.” B.     Criminal proceedings 12.     On 12 May 2009 the Khoroshevskiy District Court of Moscow found the applicant guilty and gave him a custodial sentence. The applicant appealed, complaining about an erroneous interpretation of law and improper assessment of evidence by the District Court. 13.     On 12 August 2009 the Moscow City Court upheld the conviction on appeal. II.     PROCEDURE BEFORE THE COURT 14.     On 21 April 2009 the applicant lodged the first letter with the Court, briefly stating that he was detained in remand prison IZ-77/3 of Moscow, that his Convention rights were violated, and asking the Court for an application form. 15.     By letter of 29 May 2009 the Registry sent the application form to the applicant, requesting to return it by 24 July 2009 at the latest and informing him that failure to comply with the instruction could have impact on the date of introduction of the complaint. 16.     On 4 December 2009 the applicant submitted the completed application form which reached the Registry on 7 January 2010. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 17.     The applicant complained that the conditions of his detention in remand prison IZ-77/3 of Moscow between 22 November 2008 and 7   September 2009 violated 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 18.     With reference to various provisions of the Rules of Court and the Practice Direction on Institution of Proceedings, the Government alleged that the application form had been lodged after a long delay and that its date of posting, rather than that of the applicant’s first letter, should be taken as the date of introduction of the case. In their view, that fact had an impact on the admissibility of the complaint, in particular as regards the six-month time-limit set by Article 35 § 1 of the Convention. 19.     The applicant did not comment. 20.     The Court observes that the application form was posted on 4   December 2009, that is within six months from 7   September 2009, when the applicant had left the remand prison, the starting date of the six-month time-limit. The Court concludes that even if it were to accept the Government’s argument, the applicant’s complaint is not out of time for the purposes of Article 35 § 1 of the Convention. 21.     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.     Establishment of facts 22.     The applicant was held in the Moscow remand prison IZ-77/3 between 22 November 2008 and 7 September 2009, that is nine months and fifteen days. 23.     The Court observes that the Government submitted a large number of documents concerning various aspects of the applicant’s detention. Of particular importance is the prison population register, an original document which was prepared during the period of the applicant’s stay in the prison and covered a large part of the detention. The documents showed that the applicant had been detained in cells 608, 207, 517 and 510, which measured around 34, 32, 37 and 13 sq. m, respectively. 24.     The Court however notes that the documents, including the certificates by the director of the prison, the prison population register and the domestic judgments, variously indicated the number of sleeping places and the actual occupancy of the cells (see paragraphs 8, 9 and 11 above). 25.     Nevertheless, the Court finds that, even considering the highest occupancy figures, the applicant was afforded around 4 sq. m of personal space and that there was no shortage of sleeping places during the period under examination. 26.     As to the findings of the domestic authorities regarding the lack of personal space (see paragraphs 10 and 11 above), the Court observes that the prosecutor’s reply referred to the remand prison in general, rather than to the applicant’s personal situation, whereas the domestic judgment did not indicate the actual occupancy of the cells and it is not clear from it why such conclusion was reached. 27.     The applicant’s submissions differed from those of the Government in every aspect save for the number of one cell. Although they were sufficiently detailed, the only evidence corroborating them were the cellmates’ statements, which contained general assertions without references to concrete details (see paragraph 7 above). Moreover, the Court notes that the factual information provided by the Government was not contested by the applicant in his observations in reply. For these reasons, the Court lends credence to the Government’s submissions. C.     Compliance with Article 3 28.     The Court found it established that the applicant had been provided with around four square metres of floor surface and disposed of his own sleeping place. It cannot be said that the dimensions of his cells were so small as to restrict the applicant’s freedom of movement (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 143-148, 10   January   2012). 29.     It also appears that the applicant was allowed a one-hour outdoor exercise daily. Windows were not fitted with metal shutters preventing natural light and fresh air from penetrating into the cells. The cells were additionally equipped with artificial lighting and forced ventilation. 30.     The Court observes that the lavatory pans, the dining tables and the sleeping places were all located within the cells, but at a sufficient distance from each other. Brick partitions separated the toilets from the rest of the cells. Hot and cold running water was available to detainees and the applicant had regular access to shower and washing facilities. 31.     Taking into account the cumulative effect of those conditions, the Court considers that the conditions of the applicant’s detention in remand prison IZ-77/3 of Moscow between 22 November 2008 and 7 September 2009 cannot be regarded as inhuman or degrading. There has been therefore no violation of Article 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 32.     The applicant further complained that he did not dispose of an effective domestic remedy for his grievance concerning the inhuman conditions of detention, as required by Article 13 of the Convention, which provides that: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 33.     The Government, with reference to the Court’s judgment of Ananyev and Others v. Russia (cited above) acknowledged the absence of such remedies, but submitted that the applicant was not a victim of the violation since he did not attempt to raise the issue at the domestic level. 34.     The applicant did not submit any specific comments. 35.     The Court observes that the applicant complained about the conditions of his pre-trial detention to the prosecutor and tried to obtain redress in the Russian courts (see paragraphs 10 and 11 above). Accordingly, it rejects the Government’s objection. 36.     Taking into account the Court’s findings in the Ananyev and Others judgment (cited above, §§ 93-118), it considers that the applicant did not have at his disposal an effective domestic remedy for his complaints, in breach of Article 13 of the Convention. III.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 37.     The applicant also complained that he could not adequately prepare for the trial because of poor conditions of his detention. The Court notes that the applicant did not raise that complaint before the courts during the criminal proceedings against him. It follows that the complaint is inadmissible due to non-exhaustion of domestic remedies in accordance with Article 35 § 1 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.     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 39.     The applicant claimed 15,840 euros in respect of non-pecuniary damage. 40.     The Government did not comment. 41.     The Court has found a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy for the applicant’s complaint about the conditions of his pre-trial detention. 42.     In these circumstances, the Court considers that the finding of a violation constitutes sufficient just satisfaction (see Ananyev and Others v.   Russia , cited above, §   173). Accordingly, it rejects the applicant’s claims in respect of non-pecuniary damage. B.     Costs and expenses 43.     The applicant did not claim any costs and expenses incurred either before the domestic courts or the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaints concerning the conditions of the applicant’s pre ‑ trial detention and the lack of an effective domestic remedy in that regard admissible and the remainder of the application inadmissible;   2.     Holds that there has been no violation of Article 3 of the Convention;   3.     Holds that there has been a violation of Article 13 of the Convention;   4.     Holds that the finding of a violation constitutes sufficient just satisfaction;   5.     Dismisses the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Søren Prebensen   Khanlar Hajiyev   Acting Deputy Registrar   President