CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 30 mars 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s403582AA { width:8.67pt; display:inline-block } .s7EDD3AD2 { width:153.53pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     THIRD SECTION DECISION Application no. 70711/12 Vasiliy Yuryevich RUDAKOV against Russia   The European Court of Human Rights (Third Section), sitting on 30   March 2021 as a Committee composed of:   Darian Pavli, President,   Dmitry Dedov,   Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to the above application lodged on 1 October 2012, Having regard to the observations and unilateral declaration submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Vasiliy Yuryevich Rudakov, is a Russian national, who was born in 1972 and is detained in Elban, Khabarovsk Region. He was represented before the Court by Mr A. Molostov, a lawyer practising in Magnitogorsk. 2.     The Russian Government (“the Government”) initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr   M.   Galperin. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 1 October 1999 the Tyumen Regional Court convicted the applicant of robbery, murder, intentional destruction of property, illegal manufacturing and possession of arms for killing five persons by burning them in their car and sentenced him to life imprisonment. After detention in an unspecified prison, on 26 January 2011 he was transferred to correctional colony no. IK-56 in the village of Lozvinskiy, Sverdlovsk Region. 5.     On an investigator’s order the applicant was transported from the correctional colony to Vladimir to take part in investigative acts in another criminal case. His transfer started in the evening of 13 April 2012 when he was placed in an assembly cell. The applicant was not provided with bedding or a mattress, and thus could not sleep. 6.     On 14 April 2012 the applicant was transported for fifteen hours by train to Yekaterinburg. Despite being a non-smoker, he was held in a cigarette smoke-filled compartment that had no ventilation, poor lighting, and afforded 0.5 sq. m of personal space. The applicant’s hands were cuffed at the front every time he was brought to the toilet, and a guard monitored him through the open toilet door. 7.     The applicant complained about the conditions of transport to the Sverdlovsk Regional Office of the Federal Prisons Service, the relevant part of which reads as follows: “... pursuant to paragraph 229 of the Instruction for Special Escorting Units of the Enforcement Authorities approved by the order of the Ministry of Justice and Ministry of the Interior on 24 May 2006 no. 199dsp/369dsp (the “Escorting Rules”), when a convict uses the toilet, a warden shall continuously monitor him through a half-open toilet door or a special window... Under paragraph 33 of the Escorting Rules, prison officers may apply handcuffs to detainees if their behaviour implies a possibility of absconding or causing harm to themselves or others. Since Mr Rudakov had been sentenced to life imprisonment, he was handcuffed every time he went to the toilet and the toilet door was left half open for security concerns and in order to prevent him from absconding... The compartment occupancy standards were met.” 8.     On his way to the colony in Sverdlovsk Region, the applicant was held in Yekaterinburg remand prison no. IZ-66/1 between 29 June and 14   July 2012. The applicant was held in a cigarette-smoke-filled cell that had poor electric lighting, no ventilation, and no natural light, afforded 1.5   sq. m of personal space, and was infested with mice. The lavatory was 1.5 m away from the dining table and was not separated from the living space, thus affording no privacy. Relevant domestic law 9.     Under Article 86 of the Code of Execution of Criminal Sentences of 8   January 1997 (“the CES”), measures of restraint may be applied to prisoners who put up physical resistance to prison officers, refuse to follow the lawful orders of staff, engage in aggressive behaviour, mass unrest, hostage-taking, assaults or other dangerous activity, or try to escape or harm themselves or others. 10.     Section 30 of the Penal Institutions Act (Federal Law no. 5473-1 of 21 July 1993) provides that handcuffs may be used to suppress mass unrest or group violations of public order by detainees, as well as to apprehend offenders who persistently disobey or resist officers. They may also be used when moving and escorting prisoners whose behaviour indicates that they could abscond or harm themselves or others. 11.     Paragraph 41 of the Internal Rules of Penal Facilities, approved by Order of the Ministry of Justice no. 205 on 3 November 2005, provides that if the behaviour of persons serving a life sentence indicates that they could abscond or cause harm to themselves or others, their hands must be cuffed behind their backs when they leave their cells. Relevant Council of Europe material 12.     On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules, accounting for developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. Under the amended European Prison Rules, handcuffs may not be used except if necessary, as a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise (paragraph 68.2). Instruments of restraint may not be applied for any longer time than is strictly necessary (paragraph 68.3). COMPLAINTS 13.     The applicant complained under Articles 3 and 13 of the Convention about handcuffing during his transport, conditions of detention and transport and lack of effective remedies. THE LAW Handcuffing during the applicant’s transportation 14.     The applicant complained that he had been handcuffed when he had been escorted to toilets during his transportation between the prisons and lack of effective remedies to protect his rights in violation of Articles 3 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “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.” 15.     The Government submitted that the applicant had not complained about his handcuffing before the domestic authorities, that he had not complied with the six-month rule and that his handcuffing had been justified by his conviction and unspecified violations of the prison internal order. 16.     The applicant maintained his complaint. Article 3 17.     The Court notes that the applicant complains about handcuffing during his transportation on 13 and 14 April 2012. He lodged his application with the Court on 1 October 2012, therefore, he had complied with the six ‑ month rule. As regards exhaustion of domestic remedies, it seems that handcuffing during the transportation applied to all transported prisoners. It is unlikely that the applicant’s complaint about this measure had any prospect of success. In any event, the complaint is manifestly ill-founded for the reasons indicated below. 18.     In the context of restraint measures, the Court has held that the use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary (see Raninen v. Finland , 16 December 1997, § 56, Reports of Judgments and Decisions 1997 ‑ VIII; Mouisel v. France , no. 67263/01, § 47, ECHR 2002 ‑ IX; Hénaf v. France , no. 65436/01, § 48, ECHR 2003 ‑ XI; Mathew v.   the Netherlands , no. 24919/03, § 180, ECHR 2005 ‑ IX; and Kashavelov v.   Bulgaria , no. 891/05, § 38, 20 January 2011). The Court must always have regard to the specific facts of the case (see Avcı and Others v. Turkey , no.   70417/01, §   38, 27 June 2006). 19.     The use of handcuffs could be warranted on specific occasions, such as for transfers outside prison (see Garriguenc v. France (dec.), no.   21148/02, 15 November 2007) or when used for short periods of time (see Kuzmenko v. Russia , no. 18541/04, § 45, 21 December 2010, where the applicant remained handcuffed to a radiator in the corridor of a dormitory building for few hours). 20.     In the present case, the applicant was handcuffed during his transport between the prisons. The use of handcuffs could be considered necessary in the circumstances. The measure in question had been imposed in the context of the applicant’s lawful detention, not in order to humiliate and debase him, but on the grounds of a reasonable fear on the part of the responsible authorities that otherwise he might escape. It did not entail use of force, or public exposure, exceeding what could reasonably be considered necessary in the circumstances. Nor is the Court persuaded that the treatment in issue adversely affected the applicant’s mental state (see Raninen , cited above, §§   55-59). The treatment did not attain the minimum level of severity required by Article 3 of the Convention (see Kleuver v. Norway (dec.), no.   45837/99, 30 April 2002). 21.     This part of the application discloses no appearance of a violation of this provision. It follows that this part must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. Article 13 22.     The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order, where there is an “arguable claim” of a violation of a substantive Convention provision (see Razvyazkin v. Russia , no. 13579/09, §§ 125-6, 3 July 2012). 23.     The Court notes that it has declared the applicant’s complaint under Article 3 on account of handcuffing during his transportation inadmissible. Accordingly, the applicant did not have an “arguable claim” of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable to this part of the application. It follows that the complaint under Article 13 must also be rejected pursuant to Article 35 §§   3   (a) and 4 of the Convention. Conditions of detention and transport 24.     The applicant complained about conditions of detention in the remand prison, conditions of transport between prisons and lack of effective remedies to protect his rights in violation of Articles 3 and 13 of the Convention. 25.     The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant in respect of his complaint concerning conditions of detention and transport and lack of effective remedies under Articles 3 and 13 of the Convention. They acknowledged the violation of the applicant’s rights, offered to pay him 1,000 euros and invited the Court to strike the 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 from the date of notification of the Court’s decision. In the event of 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. 26.     The payment will constitute the final resolution of case insofar as it concerned the complaints about conditions of detention and transport and lack of effective remedy in this respect under Articles 3 and 13 of the Convention. 27.     The applicant was sent the terms of the Government’s unilateral declaration several weeks before the date of this decision. The Court has not received a response from the applicant accepting the terms of the declaration. 28.     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.” 29.     Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the cases to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no.   26307/95, §§ 75-77, ECHR 2003-VI). 30.     The Court has established clear and extensive case-law concerning complaints relating to the inadequate conditions of detention and transport and lack of effective remedy in this respect (see, for example, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 84-166, 10 January 2012, and Tomov and Others v. Russia , nos. 18255/10 and 5 others, §§ 114-156, 9   April 2019). 31.     Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of application in the part covered by the unilateral declaration (Article 37 § 1 (c)). 32.     In the light of the above considerations, 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 (Article 37 § 1 in fine ). 33.     Finally, 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). 34.     In view of the above, it is appropriate to strike case out of the list as regards the complaints concerning the inadequate conditions of detention and transport and lack of effective remedy in this respect. For these reasons, the Court, unanimously, Declares the complaints about handcuffing during the applicant’s transportation and lack of effective remedy in this respect inadmissible; Takes note of the terms of the respondent Government’s declaration in covering inadequate conditions of detention and transport and lack of effective remedy in this respect as well as of the arrangements for ensuring compliance with the undertakings referred to therein; Decides to strike application in the part covered by the Government’s unilateral declaration out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. Done in English and notified in writing on 11 May 2021.   {signature_p_2}   Olga Chernishova   Darian Pavli   Deputy Registrar   President