SKOROBOGATYKH v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mr Sergey Dmitriyevich Skorobogatykh, is a Russian national, who was born in 1966 and lives in Svetlyi, the Kaliningrad Region. He is respresented before the Court by Mrs Karinna A. Moskalenko and Mrs Natalya A. Anderson, lawyers practising in Moscow. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant currently serves a term of imprisonment in penitentiary establishment OM-216/13 in the Kaliningrad Region. In May 1999 several HIV-infected prisoners were accommodated in the prison during one week. The applicant considered that his health and life were in danger since he had “to share barber shop, sauna, dental room, tableware, and clinic” with the infected persons and on 4 March 2002 he filed an action against the administration of the prison and other authorities in the Central District Court of Kaliningrad. He requested the court to declare the administration’s actions unlawful and to award him non-pecuniary damages. On 19 March 2002 the court informed the applicant about the date of the hearing and his procedural rights. The court noted that it could not summon the applicant to the hearing because the Code of Civil Procedure did not provide for transporting of prisoners to courts. The court also informed the applicant that he could appoint a representative or waive his right to be present at the hearing. On 27 March 2002 the applicant wrote to the court insisting that his personal presence as well as the presence of other prisoners who could confirm his allegation was absolutely necessary. He claimed that it was only in oral proceedings that he could express the anguish of living in constant fear of HIV-infection. The hearing on the merits of the case took place on 5 April 2002. Representatives of the defendants were present and made written and oral submissions to the court, whilst the applicant was absent. It appears that the applicant could make written submissions to the court prior to the commencement of the hearing, but it is not clear whether the applicant had any knowledge of the authorities’ written or oral submissions prior to the rendering of the first instance judgment. By judgment of 5 April 2002 the Central District Court dismissed the applicant’s action. The court considered it possible to hold the hearing in the applicant’s absence because the applicant had not appointed a representative, because he had been duly notified about the time and place of the hearing, and because “the documents in the case-file were sufficient for the examination of the case”. On the merits, the court noted that the placement of HIV-infected persons had been fully compatible with the domestic legislation and that no special precautions except those relating to catering had been required. The court also established that in addition to special catering arrangements the administration of the prison had supplied HIV-infected persons with separate tableware, medical equipment and that they had not taken baths on the same day as other prisoners. Finally, after their departure the whole facility was thoroughly disinfected. On 30 May 2002 the applicant appealed against the judgment on the ground that the hearing had taken place in his absence. On 24 July 2002 the Kaliningrad Regional Court dismissed the appeal. As regards the applicant’s argument regarding his inability to take part in the first instance hearing, the court noted that rules of civil and criminal procedure did not provide for transportation of prisoners to hearings in civil cases. As to his absence on appeal, the court found that “the applicant had been duly notified about the hearing but did not appear”, that “his detention could not be regarded as a valid excuse for the failure to attend” and that, furthermore, the applicant had not appointed a representative. Article 46 of the Constitution of the Russian Federation provides that decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court. Article 53 of the Constitution provides for the right to be reimbursed by the state for the damage caused as a result of unlawful actions (inaction) of the state bodies and their officials. Under Section 151 of the Civil Code of Russia compensation of non-pecuniary damage is payable only in case physical or moral prejudice has been inflicted on a person through the actions, violating his rights. Under Section 101 (3) of the Penitentiary Code of Russia (Уголовно-исполнительный кодекс РФ) the administration of penitentiary institutions may be held liable for non-compliance with established sanitary, hygienic and anti-epidemic norms aimed at the protection of the health of prisoners. Section 101 (2) of the Penitentiary Code, as in force at the relevant time, provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision insofar as it related to HIV-infected prisoners. By Sections 73 and 76 of the Penitentiary Code persons convicted to a sentence of imprisonment serve it in penitentiary establishments and throughout the detention are transported under convoy. Section 43 of the Civil Procedure Code of RSFSR of 1964 as in force at the relevant time provided that everyone may participate in court proceedings personally or through his representatives. Under Sections 157-161 of the Civil Procedure Code in case where a party was properly informed of the date of the hearing but failed to appear and excuse himself by reference to a good reason, a court may either adjourn the proceedings, leave the claim without examination (in case of the plaintiff’s repeated failure to appear after notification) or examine the claim in the party’s absence.