Постановление Европейского суда по правам человека от 27.05.2010 «Дело Артемов (artyomov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ARTYOMOV v. RUSSIA
(Application No. 14146/02)
JUDGMENT*
(Strasbourg, 27.V.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Artyomov 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 {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 6 May 2010,

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

PROCEDURE
1. The case originated in an application (No. 14146/02) 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 Sergey Gennadyevish Artyomov ("the applicant"), on 6 February 2002.

2. The applicant, who was granted legal aid, was represented by Ms O. Preobrazhenskaya and Ms O. Mikhaylova, lawyers with the International Protection Centre in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been detained in appalling conditions in detention facility No. IZ-39/1 in Kaliningrad, that he had been severely beaten up in a correctional colony on three occasions, that there had been no effective investigation of his complaints of ill-treatment and that he had not been afforded an effective opportunity to argue his civil claims before domestic courts.

4. On 13 October 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). On 20 May 2009 the Court put additional questions to the parties.

5. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1973 and lived until his arrest in the town of Gvardeysk, Kaliningrad Region.

A. Convictions
7. On 8 September 1999 the Gvardeyskiy District Court of the Kaliningrad Region found the applicant guilty of aggravated blackmail and sentenced him to five years' imprisonment.

8. In separate proceedings, on 16 November 2000 the Supreme Court of the Russian Federation, in the final instance, convicted the applicant of disruption of order in a detention facility and sentenced him to ten years' imprisonment.

B. Detention in facility No. IZ-39/1 in Kaliningrad
1. Detention from 16 August 1998 to 14 April 1999
(a) Conditions of detention
9. From 16 August 1998 to 14 April 1999 the applicant was detained in Kaliningrad No. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no construction works to the cells have been carried out since.

10. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant was kept in twenty-two different cells which measured 7.8, 14 and 31.1 square metres. The Government submitted that the information on the exact number of inmates detained together with the applicant was not available. They noted that the cells could have occasionally been overcrowded, but at all times the applicant had had an individual bunk and bedding. Relying on the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory.

11. The applicant did not dispute the cell measurements. However, he alleged that the cells which measured 14 square metres had had ten sleeping places and usually had housed from 24 to 30 inmates. The smaller cells had either six or eight sleeping places and accommodated from 14 to 22 detainees. Given the lack of beds, inmates had slept in shifts. The applicant further submitted that the sanitary conditions had been appalling.

(b) Proceedings for compensation for damage
12. On 12 June 2002 the applicant lodged an action against facility No. IZ-39/1 and the Ministry of Finance, seeking compensation for damage. He described the conditions of his detention in minute detail and claimed that his detention had amounted to torture. He also sought leave to appear before the court.

13. On 17 June 2002 the Tsentralniy District Court of the Kaliningrad Region refused leave to appear because the domestic law did not require the applicant's presence. A month later the applicant again unsuccessfully sought leave to appear and asked to be assisted by legal aid counsel, arguing that he had no means to pay for legal assistance.

14. On 15 July 2002 the Tsentralniy District Court dismissed the action because the applicant had failed to prove that the facility administration had been liable for damage allegedly caused to him and he had not produced evidence showing that his rights had been violated. That judgment was quashed by the Kaliningrad Regional Court on 13 November 2002. The case was remitted for fresh examination.

15. On 21 January 2003 the applicant received a letter from a judge of the Tsentralniy District Court informing him that he could not be granted leave to appear as the law did not allow a transfer of detainees from facilities where they are serving their sentence to enable them to take part in civil proceedings. The judge noted that the District Court had no right to bring the applicant to the hearing, as his regime of detention would be violated. The judge further informed the applicant that he could appoint a representative or authorise the District Court to examine the action in his absence.

16. On 28 February 2003 the Tsentralniy District Court, in the applicant's absence, dismissed the action. The relevant part of the judgment read as follows:

"[The applicant] was not brought to the hearing because the law on civil procedure does not prescribe the transport of prisoners who serve sentence in detention facilities to court hearings to allow them to take part in examination of civil cases. [The applicant] did not want to make use of his right to issue a power of authority to a representative to ensure his participation in the examination of the case; he was duly informed about the date and time of the hearing.

...

As it follows from information presented on 27 February 2003 by the administration of detention facility No. IZ-39/1, cell No. 4/19 [where the applicant was detained] measures 14 square metres; it is impossible to establish how many inmates were detained in the cell as such data were not recorded. Mr S. [who was detained together with the applicant] indicates in his claim that the cells in which he had been detained had been overcrowded. As it follows from [the applicant's] detention record he was detained in 22 different cells during his detention.

The above-mentioned circumstances attest to the fact that there is no objective, true and sufficient evidence corroborating [the applicant's] statement that two square metres [of personal space] were afforded to each three inmates. Moreover, funds were not provided from the federal budget for the construction of the second building of the detention facility between 1998 and 2000.

According to certificate No. 1397 issued on 2 July 2002 by the Department for Execution of Sentences, due to lack of funds reconstruction and major repair works were not carried out in the detention facility in 1998 and 1999.

By virtue of Article 1069 of the Civil Code of the Russian Federation, damage caused to an individual by unlawful actions (omissions) of State authorities, municipal authorities or their officials is to be compensated and is compensated at the expense of the Treasury of the Russian Federation, treasuries of the constitutive entities of the Russian Federation or treasuries of the municipal authorities respectively.

Taking into account the above-mentioned circumstances, the court concludes that having regard to the lack of funds in the federal budget for the reconstruction and major repair works of the detention facility and to the fact that [the applicant's] arrest was authorised by a prosecutor, the actions of the administration of detention facility No. IZ-39/1 pertaining to [the applicant's] placement and detention in the facility had a lawful character and complied with requirements of the law; thus, the respondents do not bear responsibility under Article 1069 of the Civil Code of the Russian Federation.

...

By virtue of Article 151 of the Civil Code of the Russian Federation, if an individual sustained non-pecuniary damage (physical and moral sufferings) as a result of actions which violated his personal non-pecuniary rights or which encroached on his other non-pecuniary interests or in other cases which are prescribed by law, a court may order that the adversary should compensate non-pecuniary damage.

As it was indicated above, the respondents are not those who caused damage due to the overcrowding in the detention facility cells; lack of repair works; [the applicant] contracting a skin rash; the deterioration of [the applicant's] eyesight; as to [the applicant's] allegations of insufficient food, lighting and provision of essentials, they were refuted by the case file materials; accordingly, the court dismisses [the applicant's] action."
17. The applicant lodged an appeal statement, complaining, inter alia, that he had not been afforded an opportunity to attend the hearings before the District Court and thus he had been unable to argue his case effectively. The applicant sought leave to appear before the appeal court.

18. On 4 June 2003 the Kaliningrad Regional Court upheld the judgment of 28 February 2003, endorsing the reasons given by the District Court. The relevant part of the judgment read as follows:

"As to [the applicant's] claims of overcrowding in the cells in which he was detained and inability to shower at least once a week, as prescribed by the Rules on Internal Order, those allegations were confirmed; at the same time, those violations of the detention rules did not have a gross and malicious character amounting, as [the applicant] claimed, to torture. For instance, [the applicant] could shower every ten days in view of the throughput capacity of the bathhouse; that fact cannot be considered a serious violation of [the applicant's] rights.

As it follows from a certificate submitted by the facility administration to the court, during the period indicated by [the applicant] from 1,600 to 1,800 persons were detained in the facility, while the maximum permitted number of inmates was 1,015. In such circumstances, the cells in fact occasionally accommodated more inmates than was permitted, however the [permitted] number was not exceeded threefold as [the applicant] claimed. At the same time the [District] Court rightfully considered that there was no guilt on the part of the detention facility in such circumstances, as the facility did not have the right not to admit the detainees when the maximum capacity of the facility had been exceeded. The [District] Court lawfully found that there were no grounds for accepting [the applicant's] action for compensation for non-pecuniary damage as the responsibility under Article 1069 of the Civil Code of the Russian Federation only arises on the condition of guilt on the part of the State authorities, which is absent in the present case.

...

The court cannot accept [the applicant's] argument that his right to defence was violated. Norms of the Code of Civil Procedure (in force at the material time) do not require transport of detainees to courts which examine civil cases. The [District] Court informed [the applicant] of his right to participate in a court hearing through his representative, however, [the applicant] did not want to make use of that right. His requests for appointment of legal aid counsel also could not be granted by the [District] Court because there is no norm in the Code of Civil Procedure which requires Bar Associations to represent interests of such persons in civil cases. At the same time, nothing precluded [the applicant] from asking a Bar Association to represent him."
The applicant was not brought to the appeal hearing.

2. Detention from 19 April to 26 September 2000
(a) Conditions of detention
19. On 19 April 2000 the applicant was transferred from a colony where he was serving his sentence pursuant to the judgment of 8 September 1999 to facility No. IZ-39/1 to take part in the trial on the charge of disruption of order in the colony. He remained in facility No. IZ-39/1 until 26 September 2000.

20. According to the applicant, he was detained in a number of cells. He provided description of the two cells: cell No. 79 which measured 17 square metres, had 10 sleeping places and accommodated 18 to 24 inmates, and cell No. 29, which measured 10 square metres, had six sleeping places and accommodated 15 inmates. The inmates took turns to sleep. The applicant argued that the sanitary conditions in the cells had been unsatisfactory. The ventilation system did not function, making the heat in summer unbearable. The cells were permanently lit by 40-watt bulbs. The toilet was not separated by a partition from the living area. At no time did the applicant have complete privacy. Anything he happened to be doing - using the toilet, sleeping - was subject to observations by the guard. He could shower twice a month. Of the ten shower heads only five worked and a large group of inmates had to fight for a place to shower within the afforded fifteen minutes. The cells were dirty, damp and full of insects.

21. The Government, relying on certificates issued by the director of the detention facility on 15 July 2009, argued that the applicant had been detained in eight different cells, of which six cells measured between 7.7 and 7.9 square metres and had two sleeping places and the remaining two cells measured 13.4 and 16.7 square metres and were fit to accommodate three inmates. The Government submitted that the number of inmates in the cells