Постановление Европейского суда по правам человека от 17.06.2010 «Дело Овчинников (ovchinnikov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF OVCHINNIKOV v. RUSSIA
(Application No. 9807/02)
JUDGMENT*
(Strasbourg, 17.VI.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 Ovchinnikov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

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

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

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

PROCEDURE
1. The case originated in an application (No. 9807/02) 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 Igor Alekseyevich Ovchinnikov ("the applicant"), on 1 February 2002.

2. The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that he had been ill-treated, that the conditions of his detention on remand had been appalling, that his pre-trial detention had been unlawful and arbitrary, that the criminal proceedings against him had been unfair, that the authorities had allegedly tapped his telephone between January and December 1999 and that the courts had failed to protect his personal property pending the proceedings and had eventually confiscated it.

4. On 4 January 2006 the President of the First Section decided to communicate the complaint concerning the conditions of the applicant's detention to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1967 and at present resides in the city of St. Petersburg.

A. The applicant's arrest and conviction
6. On 25 December 1999 the applicant, the then deputy mayor of the town of Magadan, took a bribe from a third person and was caught in the act by officials of the Federal Security Service (Федеральная служба безопасности).

7. The applicant alleged that between January and December 1999 his telephone had been tapped by the authorities. The case file contains no evidence which could confirm the allegation. It does not appear that the applicant raised these grievances before any domestic authority.

8. On the following day an investigator of the Magadan Regional Prosecutor's office initiated criminal proceedings for bribery and arrested the applicant as a suspect.

9. By a decision of 30 December 1999 the investigator brought charges of bribery against the applicant.

10. On 3 April 2001 the Magadan Regional Court convicted the applicant of bribery and sentenced him to eight years of imprisonment and confiscation of his property.

11. By a decision of 28 November 2001 the Supreme Court upheld the judgment on appeal. It does not appear that the applicant complained about the confiscation of his property ordered by the Regional Court.

B. The conditions of the applicant's detention
from December 1999 to August 2003
12. Between 27 and 30 December 1999 the applicant was detained in a temporary isolation facility.

13. On 30 December 1999 the applicant was transferred to detention facility IZ-49/1 of the town of Magadan (also known as IZ-47/1), in which he remained until 28 August 2003.

1. Cell No. 38
14. The applicant submitted that between 31 December 1999 and 22 February 2000 he was kept in cell No. 38 measuring 25 square metres and designed for nine inmates. At all times the number of inmates varied between seventeen and nineteen.

15. Since the number of beds was insufficient, the inmates took it in turns to sleep. The applicant's turn started at 4 o'clock in the morning. According to him, proper sleep was impossible as the television was on around the clock and the light in the cell was never turned off. Being surrounded by heavy smokers, the applicant was forced to become a passive smoker.

16. The cell had no ventilation and was very cold in winter. Because of the poor quality of the air in the cell, a window had to remain open all the time. The applicant claimed that he was never provided with proper bedding. The cell was heavily infected with bugs and had no anti-infestation treatment.

17. The lavatory pan in the corner of the cell offered no privacy, being separated, by a partition of 1.1 m only, from a wash stand but not from the living area and dining table. As a result a person using the toilet was in plain view of both his cellmates and any prison guard who happened to be observing the inmates through the peep-hole in the door.

18. The applicant alleged that in general hot showers and changes of bed sheets were irregular and daily walks outside his cell were restricted to one hour.

19. The Government submitted that cell No. 38 measured 8.4 square metres and had one window. They were unable to provide any exact information concerning the overall number of detainees during the relevant period of time, since the original prison records in this connection had been destroyed.

20. The Government submitted a written statement by prison officer K. dated 17 February 2006, who recalled that there had been two inmates, including the applicant, in that cell at the relevant time.

2. Cell No. 77
21. On 22 February 2000 the applicant was transferred to cell No. 77. He stayed there until 28 February 2000.

22. According to the applicant, the cell measured 20 square metres and was originally designed for eight inmates. The cell usually hosted thirteen inmates. The applicant's shift to sleep started at 9 a.m.

23. He also alleged that fellow inmates had beaten him up and psychologically abused him. The case file contains no indication that the applicant applied for medical aid or complained to any officials in connection with that allegation.

24. The Government submitted that the cell measured 12.5 square metres and had one window. They were unable to provide any exact information concerning the overall number of detainees at the relevant period of time, since the original prison records in this connection had been destroyed. According to the written statement of prison officer K. dated 17 February 2006 there had been four inmates, including the applicant, in that cell at the relevant time.

3. Cell No. 6
25. From 29 February until 21 July 2000 the applicant was kept in cell No. 6.

26. The applicant submitted that the cell had measured 14 square metres and had had two beds for two or three inmates. The applicant alleges that the cell served as a place of confinement for inmates who had breached the prison regulations. The applicant submitted that the location of the cell in the basement, a lack of daylight and extreme pollution caused by fumes from the adjacent garage resulted in serious distress and headaches.

27. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been three inmates in the cell, the applicant included.

4. Cell No. 45
28. On 21 July 2000 the applicant was moved to cell No. 45 and stayed there until 9 April 2001.

29. According to him, the cell measured around 9.5 square metres and was designed for two inmates. The applicant was unable to recall the exact number of detainees in the cell, but submitted that the cell had been overcrowded at all times.

30. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been two inmates, including the applicant, in that cell.

5. Cell No. 76
31. From 9 April to 25 August 2001 the applicant was kept in cell No. 76.

32. The applicant submitted that the cell had measured 7.14 square metres and had had two beds. The cell had been overcrowded.

33. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been two inmates in the cell, the applicant included.

6. Cell No. 70
34. On 25 August 2001 the applicant was moved to cell No. 70 and stayed there until 26 August 2001.

35. According to him, the cell measured around 12.5 square metres and was designed for three inmates. The applicant was unable to recall the exact number of detainees in the cell, but submitted that the cell had been overcrowded at all times.

36. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been three inmates in the cell, including the applicant.

7. Cell No. 76
37. From 26 August 2001 to 3 January 2002 the applicant was again kept in cell No. 76.

38. According to the applicant, the cell had been overcrowded.

39. The Government denied that allegation and, referring to the statement of prison officer K. of 17 February 2006, submitted that there had only been two inmates in the cell, the applicant included.

8. Cell No. 1
40. On 3 January 2002 he was admitted to cell No. 1, which measured 14 square metres. On 22 January 2002 the applicant was moved from this cell to the prison staff dormitory.

41. According to the certificate provided by the prison administration, the cell had three beds.

42. The applicant argued that it had had eight sleeping places and that the average number of inmates had not exceeded eight.

43. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been three inmates in the cell, including the applicant.

9. Prison staff dormitory
44. From 22 to 23 January 2002 the applicant was held in the prison staff dormitory, which consisted of a room measuring 189.38 square metres and had 10 windows.

45. The applicant did not submit any specific information concerning his detention in the dormitory.

46. The Government relied on a certificate issued by the head of the prison on 17 April 2006 No. 49/1/12-1207, according to which the number of detainees held in the dormitory during the relevant period of time had been forty, including the applicant.

10. Cell No. 3
47. Between 23 January and 10 October 2002 he was held in cell No. 3, measuring 11.9 square metres.

48. According to the prison administration, there were three beds in the cell. The applicant submitted that the cell had had 4 bunk beds for 8 inmates.

49. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been three inmates, including the applicant, in the cell.

11. Cell No. 36
50. Between 10 October 2002 and 28 August 2003 the applicant was held in cell No. 36, measuring 7.7 square metres.

51. The applicant submitted that it had had two sleeping places and had been constantly overcrowded.

52. The Government confirmed the size of the cell and also relied on the statement of prison officer K. of 17 February 2006, in which he recalled that there had been two inmates, including the applicant, in the cell.

53. On 28 August 2003 the applicant was transferred to penitentiary establishment IK-4 in the Uptar village of the Magadan Region.

12. The Government's general account of the conditions
of the applicant's detention
54. Relying on certificates issued by the prison administration on 20 February 2006, the Government submitted that the applicant had been provided with proper bedding, a personal pillow and had been able to take weekly showers. All the cells were duly ventilated, heated, disinfected and lit. All detainees were provided with medical care.

C. Alleged interference with the applicant's correspondence
55. The applicant alleged that on 24 August 2000 the prison administration had seized some of his personal correspondence and defence materials. He further alleged that after he had made complaints and threatened to go on hunger strike, the documents were returned.

56. The applicant failed to submit any supporting documents in respect of this episode. It does not appear from the materials in the case file that he brought any court actions in this respect.

II. Relevant domestic law
Rules on the prison regime in pre-trial detention centres
(as approved by Ministry of Justice Decree
No. 148 of 12 May 2000)
57. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one 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).

58. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide daytime and night-time illumination.

59. Rule 46 provided that prisoners were to be given three hot meals a day, in accordance with the norms laid down by the Government of Russia.

60. 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 bed linen after taking their shower.

61. 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.

III. Relevant council of Europe documents
62. 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