CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 novembre 2012

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A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows.   1.     Application no 30692/11 lodged on 14   April   2011 by Vladimir Grigoryevch OSTANIN who was born on 16   November   1963 and lived until his arrest in the town of Berezniki, Perm Region. He is now serving his sentence in a correctional colony in the Irkutsk Region.   On 11 October 2007 the applicant was arrested on suspicion of manslaughter of which he was subsequently found guilty. The applicant was sentenced to seven years’ imprisonment. On a number of occasions, from 16 November to 16 December 2007, from 14 to 18 December 2007, from 26 December 2007 to 6 January 2008, from 26 March to 8 April 2008, from 12 to 18 January 2009 the applicant was detained in a detention ward of the Berezniki Town police station (hereinafter – the ward). He provided the following description of the conditions of his detention in the ward. Cells were on the underground floor of the ward, having no window. They were dimply lit by small electric bulbs. There was no artificial ventilation system. Thus it was always stuffy and damp. The cells were overcrowded, with inmates having had to take turns to sleep. There was no furniture in the cells: tables, benches, and so on. The cells were dirty and infested. The lavatory did not function properly with an unpleasant odour lingering in the cells. The cells were not cleaned. No disinfectants were provided. Bedding was swamped with bedbugs. In April 2008 the applicant lodged a complaint with the Berezniki Town Prosecutor. In a letter on 21 May 2008 the prosecutor confirmed that the applicant had been detained in the “improper” conditions which resulted from the lack of funds. On 2 August 2010 the applicant lodged an action against the Ministry of Finance having sought compensation for damage sustained as a result of his detention in the ward. He also sought leave to appear. On 12 October 2010 the Berezniki Town Court held a hearing. Having noted the applicant’s absence, it stated that he had been properly informed of the date and place of the hearing and was not present because he was serving his sentence. The Town Court further studied the response from the administration of the ward and the results of the prosecutor’s inquiry into the applicant’s complaint. Having noted that the applicant’s complaints of overcrowding and poor conditions of detention, such as absence of daily walks, lack of privacy, inadequate sanitary conditions, and so on, had not been disputed by the respondent and had been confirmed by the prosecutor, the Town Court awarded the applicant 20,000 Russian roubles (RUB) (approximately 500 euros). The court stressed that it had taken into account the circumstances of the case, in particular the fact that the applicant had been detained in the ward in view of his having been accused of a criminal offence of which he had subsequently been convicted; the level of his physical (presence of bedbugs, a dilapidated sewage system in the cells, the absence of daily outside walks, the overcrowding in the cells, the lack of individual sleeping place, and the applicant having fallen ill in the ward) and moral (lack of privacy, in particular when he had had to use a lavatory) sufferings; the aggregated length of his detention (59 days) in the ward and the requirements of reasonableness and justice. The applicant appealed, having also complained about the Town Court’s failure to ensure his presence at the hearing. On 9 February 2011 the Perm Regional Court upheld the judgment, having fully endorsed the Town Court’s reasoning. The applicant was not brought to the hearing, while the prosecutor, who supported the Town Court’s findings, attended and made oral submissions. On 25 February 2011 the applicant sent a letter to the Berezniki Town Court seeking information about the appeal hearing. On 5 April 2011 he was served with a copy of the Regional Court’s judgment and with an execution writ. On 14 June 2011 the applicant sent the writ for execution of the judgment to the Ministry of Finance. According to the applicant, the judgment remains unenforced.     2.     Application no 40232/11 lodged on 25   May   2011 by Petr Petrovich MAKHOV who was born on 7   December   1985 and lived until his arrest in the town of Kandalaksha, Murmansk Region. He is now serving his sentence in the correctional colony in Murmansk. The applicant submitted that between 1 April 2005 and 27 September 2007 he had been detained in the temporary detention facility in the town of Apatity. He argued that the conditions of his detention had been appalling with his having been detained in severely overcrowded, poorly lit, dirty and damp cells, having had no individual sleeping place and no privacy as the lavatory pan had not been separated from the living area. He also stressed that he had not been provided with adequate medical assistance, in particular the dental care. The applicant further noted that on more than thirty occasions during his pre-trial detention he had been transported from the detention facility to take part in investigative actions. The applicant was taken to another town, by train, at night. He was unable to sleep and was not provided with food. He was usually taken to a collective cell at 7.00 p.m. where he remained until 2   o’clock in the morning. Then he was subjected to a body search and at 3.00 a.m. taken to the train station. At 3.30 a.m. inmates, including the applicant, were placed in a train which reached the destination point three hours later. The train was not equipped with sleeping places. On arrival to the train station inmates were taken to a police ward where they were again subjected to a search until 7.00 a.m. Then a day of his participating in various investigative steps followed with the applicant having only been able to go to sleep at 10.00 p.m. on his return to the detention facility. Inmates were only given food at 2.00 p.m., having thus being left hungry for twenty hours. In 2010 the applicant lodged an action against the administration of the detention facility, the Federal Service for Execution of Sentences and the Ministry of Finance, having sought compensation for the sufferings caused by the conditions of his detention and transport, as described above. On 14 January 2011 the Apatity Town Court, in the applicant’s absence and in the presence of the representatives of the respondents, dismissed the applicant’s claim in full, having found no evidence in its support. The Town Court noted that the applicant had been transported and detained in the conditions in full compliance with the domestic legal norms. Having addressed the issue of the applicant t’s absence from the hearing, the court noted that the applicant had not been summoned as he was serving his sentence of imprisonment. The judgment was upheld on appeal by the Murmansk Regional Court. The appeal hearing was held in the applicant’s absence. Having addressed his absence from the hearing before the Town Court, the Regional Court noted that the applicant had been informed of the time and date of the hearing. However, the Russian law did not provide him with the right to take part personally in the court hearing in a civil case as he was serving the sentence of imprisonment. The court also noted that the applicant could not be provided with legal assistance as there is also no such right. The Regional Court used the same set of arguments while explaining the applicant’s absence from the appeal hearing.     3.     Application no 60052/11 lodged on 2   September   2011 by Oleg Aleksandrovich GORDEYEV who was born on 17 June   1980 and lived before his arrest in the town of Troitsk. He is serving his sentence in a correctional colony in Chelyabinsk.   On 1 November 2005 the applicant was placed in a detention ward of the Troitsk Town police department. He was kept in cell no. 15. He remained in that ward until 18 November 2005. According to the applicant, the cell was no more than a concrete box, with the concrete floor, walls and ceiling. The walls in the cell were coated with “shuba”, a sort of abrasive concrete lining. According to the floor plans provided by the applicant, cell no. 15 measured approximately 7 square metres. Extracts from the registration logs showed that the cells housed from 2 to 4 inmates when the applicant was detained there. On eight days the applicant had to share the cell with three inmates, for five more days he was kept there with two other inmates and the remaining period he was detained with another person. The applicant was not provided with the bedding. He did not have an individual sleeping place as the cell was overcrowded. It was extremely cold in the cell as the heating system did not function properly. Windows were covered with metal plates with small holes in them which did not give access to fresh air and light. A lavatory pan was installed forty centimetres above the floor and no more than 1.2 metre from the living area from which it was not separated. The applicant was not given an opportunity to take a shower during the entire period of his detention in the ward. The food was inadequate and scarce. Sanitary conditions were appalling. Inmates could not take daily hour-long walks outside as the ward did not have a recreation yard. As follows from a letter of 5 December 2007 by the head of the Troitsk Town Police Department, the ward had 17 cells of which only three, where women and minors were detained, were equipped with bunks. The remaining cells had “common plank bed” which corresponded to the norms of 1983 when the ward had been built. The head acknowledged that the ward required serious reconstruction works but there were no funds to carry them out. Letters from the Troitsk Town prosecutor’s office also show that the applicant’s submissions related to the conditions of his detention were correct. In 2011 the applicant lodged an action against the police department complaining about his conditions of detention in the ward. He also sought leave to attend. On 8 February 2011 the Troitsk Town Court dismissed the action. While having noted that the major part of the applicant’s description of the conditions of his detention was true, it considered that he was detained in “unacceptable” conditions for a very short period. The applicant was not brought to the hearing. The respondents attended. On 14 April 2011 the Chelyabinsk Regional Court, having considered the applicant’s appeal, dismissed it and upheld the Town Court’s findings. The applicant was also absent from the appeal hearing.     4.     Application no 76438/11 lodged on 18   November   2011 by Andrey Igorevich RESIN who was born on 29   July   1974 and is serving his sentence in the correctional colony in the town of Verkhneuralsk, Chelyabinsk Region. He is represented by Mr A. Molostov, a lawyer practicing in the Chelyabinsk Region.   Under a judgment of 7 February 2000 the applicant is serving his life ‑ imprisonment sentence. On an investigator’s order the applicant was transferred to the temporary detention facility in Khabarovsk to take part in investigative actions in another criminal case. He remained in that facility from 15   December 2008 to 25 March 2009. He gave the usual description of the conditions of detention featuring overcrowding, poor sanitary conditions, lack of access to sufficient lighting and fresh air, and so on. The applicant lodged an action seeking compensation for damage. On 25 April 2011 the Kirovskiy District Court of Khabarovsk awarded the applicant 3,000 Russian roubles (RUB) (approximately 80 euros), having accepted a part of his claims concerning the lack of access to fresh air and lack of proper sleeping place, and dismissed the remaining part of the claims, having noted that the remaining features of the conditions of his detention corresponded to legal requirements. The applicant appealed, having also argued that the District Court had failed to ensure his presence at the hearing, while having heard the responding party in person. On 3 August 2011 the Khabarovsk Regional Court upheld the judgment of 25 April 2005, having found no flaws in the District Court’s reasoning and no violation of the applicant’s procedural rights during the examination before the first instance. The applicant was also absent from the appeal hearing.   5.     Application no 14919/12 lodged on 23   January   2012 by Yuriy Aleksandrovich LEBETSKIY who was born on 1   March   1986 and lived before his arrest in the village of Tsentralniy, Perm Region. He is serving his sentence in the correctional colony in the village of Kharp, Tyumen Region.   From 6 to 18 June 2007, from 22 to 30 June 2007, from 22 to 25 July 2007, and from 29 September to 12 October 2007 the applicant was detained in a detention ward of the Chusovskoy District police department, having stayed in cells nos. 6, 9, 2 and 13. Cell no. 6 measured 9 square metres and housed from 14 to 16 inmates; cell no. 9 was six metres long and three metres wide and accommodated from 20 to 25 inmates; cell no. 2 measured 9 square metres and the applicant was kept there alone and cell no. 13 was of 18 square metres and housed from 25 to 30 detainees. The cells did not have bunks. Inmates had to share one wooden plank bed and took turns to sleep as there were so many of them in the cells. Windows were covered with metal sheets giving no access to fresh air and light. The majority of the inmate population smoked which was particularly difficult on the applicant, a non-smoker. The cells were dimly lit with a small bulb of 40 watts. The walls in the cell were coated with “shuba”, a sort of abrasive concrete lining. The cells were dirty and infested. The lavatory pan was installed on a small pedestal and was not separated from the living area, thus having offered no privacy. Inmates were not provided with bedding. Food was scarce and inadequate. The ward did not have a recreation yard. Inmates were unable to take a daily hour-long walk. On 4 September 2007 the applicant was convicted of aggravated murder and robbery and sentenced to life imprisonment. The judgment became final on 30 January 2008 when the Supreme Court upheld it on appeal. In November 2010 the applicant lodged a tort action against the police department and the Ministry of Finance, complaining about his conditions of detention in the ward. Having considered the applicant’s leave to attend, the Chusovskoy District Court issued a judicial order asking the Priuralksiy District Court in the Yamalo-Nenetskiy Region to conduct an interview with the applicant. The order was complied with on 5 July 2011 with the Priuralskiy District Court having, in detailed, recorded an interview with the applicant and provided the record to the Chusovskoy District Court. The Priuralskiy District Court also heard inmates who had been detained together with the applicant in the ward and who had supported his claims. On 1 August 2011 the Chusovskoy District Court, having found that the major part of the applicant’s submissions pertaining to the conditions of his detention in the ward (including the overcrowding, lack of daily walks, absence of bedding, absence of working ventilation system, lack of medical assistance and so on) was supported by evidence, awarded him 10,000   Russian roubles (RUB) (approximately 250 euros). The applicant appealed, having also complained that the Chusovskoy District Court had not brought him to the hearing but organised his interview before another court. On 5 December 2011 the Perm Regional Court upheld the judgment on appeal. The appeal court held the hearing in the applicant’s absence and did not address the argument pertaining to his absence from the hearing before the Chusovskoy District Court.     6.     Application no 19929/12 lodged on 1   February   2012 by Dmitriy Aleksandrovich GROMOVOY who was born on 11   October   1983 and lived until his arrest in the town of Snezhinsk, Chelyabinsk Region. He is serving his sentence in the correctional colony in the town of Kopeysk, Chelyabinsk Region.   On 30 October 2009 the applicant was arrested. Six days later he was taken to temporary detention facility no. IZ-74/3 in Chelyabinsk. On 26   August 2010 the applicant was convicted and sentenced to imprisonment. With that judgment having been quashed on 10     December 2010, a new round of trial proceedings commenced.   The applicant was again convicted on 25 March 2011. On 20 January 2011 the applicant was re-admitted to facility no. IZ-74/3 where he remained until 15 April 2011. According to the applicant he was detained in a cell of no more than four square metres. The cell was equipped with a bunk, a lavatory pan and a sink, the later two installed in the corner of the cell. The cell was lit from 6 a.m. to 10 p.m. with a bulb of 100 watts. The cell did not have a table or bench to sit on. There was no artificial ventilation system and no heating device. It was extremely cold in the cell with the applicant having been forced to remain in his winter clothes all the time, including at night. The applicant was not given hot water and could not boil it himself as there was no electric socket in the cell. Having remained in the very limited personal space and having been unable to exercise, the applicant started experiencing muscle pain in the legs and arms. The applicant lodged a tort action against the facility administration, having also sought leave to appear. On 30 May 2011, having noted that the applicant’s presence at the hearing could not be ensured, as the Russian civil procedural law did not provide for a possibility to transport a convict to a court hearing in a civil case, the Kalininskiy District Court of Chelyabinsk dismissed the action. The District Court reasoned that the conditions of the applicant’s detention fully complied with the legal requirements. The applicant appealed, having also complained of his absence in court. On 15 August 2011 the Chelyabinsk Regional Court upheld the judgment on appeal, having been convinced by the District Court’s findings. At the same time the appeal court, which also held the hearing in the applicant’s absence, noted that by virtue of the Russian procedural norms a court could only ensure an inmate’s presence in a criminal case. No such possibility was envisaged for civil proceedings.   7.     Application no 42389/12 lodged on 21   May   2012 by Sergey Valeryevich MARTIROSYAN who was born on 2   September   1982 and lived until his arrest in the town of Glazov, Udmurtiya Republic. He is serving his sentence in the correctional colony in the village of Yagul, Udmurtiya Republic.   On 8 February 2006 the Glazov Town Court discontinued criminal proceedings against the applicant on the charges of aggravated robbery and theft of documents because the prosecution had refused to press charges. That decision became final on 1 June 2006 when it was upheld on appeal. In 2010 the applicant, who was serving sentence at that time for other crimes of which he had been convicted, lodged an action against the Ministry of Finance, seeking compensation for unlawful institution of the criminal proceedings in view of the decision of 8 February 2006. He also sought leave to appear. On 22 September 2011 the Pervomayskiy District Court of Izhevsk dismissed the action of the applicant, having examined it in the latter’s absence. The District Court found no evidence that the criminal proceedings had been instituted unlawfully. As follows from letters sent to the applicant by the acting President of the Pervomayskiy District Court in response of the complaints concerning the refusal to transport him to the hearings, the District Court did not see any necessity to examine the action in the applicant’s presence. On 16 January 2012 the Supreme Court of the Udmurtiya Republic dismissed the applicant’s appeal, having seen no reasons to doubt the District Court’s assessment of the case. Having addressed the issue of the applicant’s absence both before the first-instance and the appeal courts, the Supreme Court concluded that the Russian Code of Civil Procedure did not provide for a right of an inmate to attend a hearing in a civil case. The respondent party attended every hearing.     8.     Application no 57043/12 lodged on 20   March   2012 by Andrey Igorevich RESIN who was born on 29   July   1974 and is serving his sentence in the correctional colony in the town of Verkhneuralsk, Chelyabinsk Region. He is represented by Mr A. Molostov, a lawyer practicing in the Chelyabinsk Region.   Under a judgment of 7 February 2000 the applicant is serving his life ‑ imprisonment sentence. On an investigator’s order the applicant was transferred from the correctional colony in Irkutsk to Khabarovsk to take part in investigative actions in another criminal case. He was transported by train, in a special carriage for inmates. In particular, the trips took place from 12 to 15 January 2008, from 15 to 18 March 2008, from 12 to 15 December 2008 and from 25 to 29 March 2009. The applicant provided the following description of the conditions of his transport. The carriage compartment measured 2 square metres. Every two hours guards carried out the checks of the compartments, having knocked at the walls with a large wooden hammer. Each compartment was checked from 10 to 15 minutes. Inmates were thus left without a sleep in the proper sense of that word for the entire time of the trip. The compartment was lit day and night with a bulb and the convoy service refused to turn off light at night. There was no ventilation system in the carriage and the cigarette smoke lingered in it as inmates were allowed to smoke inside. The applicant, a non-smoker, had to endure additional sufferings. The compartments did not have windows. Inmates, including the applicant, were not provided with food during the transport. He was lucky if he could take food from relatives. In 2011 the applicant lodged an action against the service for execution of sentences and the Ministry of Finance, seeking compensation for damage caused by the conditions of his transport. He also sought leave to appear. In alternative, the applicant informed the court that he was ready to waive his right for personal presence if the court is to appoint a lawyer to represent his interests. Having received the applicant’s lawsuit, the Kuybyshevskiy District Court of Irkutsk issued a judicial order, having asking the local court at the place of the applicant’s detention to conduct an interview with him. With the order pertaining to the applicant’s interview having been complied with, on 5 October 2011 the Kuybyshevskiy District Court dismissed the claim having found that the majority of the aspects of the conditions of the applicant’s transport corresponded to the domestic legal requirements. The court also did not find any evidence in support of the applicant’s claim that he had not been provided with food on his trips. The applicant appealed, having also insisted that the District Court had violated the “equality of arms” principle, given that he had not been given an opportunity to effectively participate in the hearing, to interrogate witnesses, to examine material evidence and to make oral submissions, having been merely questioned at the place of his detention on the basis of a copy of his lawsuit. The applicant insisted on his appearing before the appeal court. As follows from the applicant’s submissions, sometime in 2012 the appeal court upheld the judgment of 5 October 2011, having disregarded his request for presence. B.     Relevant domestic law The relevant provisions of domestic law on participation of inmates in civil proceedings are set out in the judgment of Shilbergs v. Russia , no.   20075/03, §§ 53-56, 17 December 2009. COMPLAINTS The applicants complained under Article 6 of the Convention that Russian courts had failed to ensure their presence in civil proceedings. The majority of the applicants also complained under Article 3 of the Convention either about the conditions of their detention in pre-trial detention facilities or the conditions of their transport. COMMON QUESTIONS 1.     Having regard to the fact that the applicant was not brought to the first ‑ instance and appeal hearings in civil proceedings, do the circumstances of the case disclose an infringement of his right to a fair hearing as guaranteed by Article 6 § 1 of the Convention? In particular, was the applicant afforded an opportunity to attend the above mentioned hearings?   2.     Having regard to the fact that the applicant’s adversaries were present at the above mentioned hearings and made submissions to the courts, has there been an infringement of the applicant’s right to equality of arms enshrined in Article   6 § 1 of the Convention?   CASE SPECIFIC QUESTIONS Applications nos. 14919/12 and 57043/12:   Having regard to the fact that the first-instance court which heard the applicant’s case authorised an interview with the applicant at the place of his detention, the Government are asked to produce a copy of the judicial order authorising the interview and a typed copy of the interview record.   Applications nos. 30692/11, 40232/11, 60052/11, 76438/11 and 14919/12, 19929/12   Has there been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in temporary detention facility or police ward, where relevant? The Government are requested to produce documentary evidence, including population registers, floor plans, day planning, colour photographs of the sanitary facilities, etc., as well as reports from supervising prosecutors concerning the conditions of detention in that facility.   Applications nos. 40232/11 and 57043/12   Has there been a violation of Article 3 of the Convention on account of the applicant’s conditions of transport? The Government are asked to produce documentary evidence, including train carriage compartment plans, food registers, train schedule and movement plan, colour photographs of the train carriage and compartments, etc. What are the domestic legal norms regulating check-up procedures during the transport of detainees?   APPENDIX No. Application no. Lodged on Applicant name date of birth                  30692/11 14/04/2011 Vladimir Grigoryevch OSTANIN 16/11/1963                40232/11 25/05/2011 Petr Petrovich MAKHOV 07/12/1985                60052/11 02/09/2011 Oleg Aleksandrovich GORDEYEV 17/06/1980                76438/11 18/11/2011 Andrey Igorevich RESIN 29/07/1974                14919/12 23/01/2012 Yuriy Aleksandrovich LEBETSKIY 01/03/1986                    19929/12 01/02/2012 Dmitriy Aleksandrovich GROMOVOY 11/10/1983                    42389/12 21/05/2012 Sergey Valeryevich MARTIROSYAN 02/09/1982                    57043/12 20/03/2012 Andrey Igorevich RESIN 29/07/1974