CASE OF PITALEV v. RUSSIA
Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
6. The applicant was born in 1970. He is currently serving his sentence in penitentiary institution УЩ349/2 in Yekaterinburg. 7. On 28 April 2001 the applicant was arrested and remanded in custody on suspicion of inflicting grievous bodily harm resulting in the death of the victim. On 27 June 2002 the Podolskiy Town Court convicted the applicant of inflicting grievous bodily harm resulting in death and sentenced him to eight years’ imprisonment. On 14 October 2002 the Moscow Regional Court upheld the judgment. The applicant was held in a pre-trial detention facility till 3 December 2002. 8. Between 3 December 2002 and 9 June 2005, excluding three periods from 4 July to 12 September 2003, from 22 June to 9 July 2004 and from 19 November to 10 December 2004, the applicant served his sentence in correctional colony IK-3, Ryazan Region (ИК-3 Рязанской области, учреждение ЯМ 401/3). 9. The applicant was kept in units (отряды) nos. 3 and 5. The parties’ descriptions of conditions in IK-3 differ in a number of respects. 10. The applicant submitted that in unit no. 5 there were approximately another seventy detainees and in unit no. 3 around fourteen detainees. He had an individual sleeping place for the whole period of detention; however, the sanitary conditions in the colony were inadequate. The central heating in their dormitory was insufficient, and during the winter the convicts slept fully clothed. In summer it was very hot in the cell, and due to its overcrowding the air was stale and musty. The toilet was situated in a separate unheated area, and it was extremely cold there in winter. No hygiene facilities were provided. Food was of a very poor quality, the usual ration included white bread, barley porridge and semi-sweet tea in the morning, barley soup and porridge at lunch time, and mashed potatoes made from powder in the evening. While a supplementary diet was prescribed for him by the doctor, the applicant claimed that he had only received milk before November 2003 and after March 2004; butter and eggs were provided as of September 2004. 11. Furthermore, there was not enough light and heating in the sewing workshop where the applicant and other prisoners worked. There was not sufficient light in the bedroom either, because the windows were obstructed by bunk beds. 12. Unit no. 5 measured 240 sq. m., and its bedroom measured 150 sq. m. The unit housed approximately 70 inmates. After he was diagnosed with tuberculosis in June 2003, the applicant was transferred to unit no. 3 to a dormitory which measured 42 square meters and housed fifteen inmates. The applicant was at all times provided with an individual bed, bedding and clothes – a cotton suit, cap, cold-weather cap, sweater and boots. The relevant records were submitted to the Court. 13. The Government, relying on the certificates provided by the Federal Service for the Execution of Sentences, further submitted that the cells were ventilated both naturally through the windows and by a ventilation shaft, which was mandatory. The windows in the cells were double glazed and allowed sufficient natural light through. The cells were also equipped with satisfactory artificial lighting. 14. The units were equipped with a central heating system; bedrooms had a seven-unit heating device which provided an average temperature of 18 degrees Celsius in winter, also in the toilets. The lighting in the sewing workshop was sufficiently provided by luminescent lamps in accordance with the relevant regulations. The applicant was provided with three special diet meals a day appropriate to his health condition. 15. From 4 July to 12 September 2003, from 22 June to 9 July 2004 and from 19 November to 10 December 2004 the applicant was held in a medico-prophylactic penitentiary institution (ЯМ-401/Б УИН МЮ РФ по Рязанской области, hereinafter – “the prison hospital”), where he was placed in the “enhanced regime” cell (палата усиленного контроля) of the tuberculosis department. The parties’ descriptions of the conditions in the prison hospital differ substantially. 16. The applicant submitted that one of his inmates in the prison hospital had had tuberculosis, and another one had had suspected tuberculosis. In the prison hospital the applicant was kept in two cells in similar conditions. In the corner of one of the cells there was a pail covered with a polyethylene lid which served as a toilet. The applicant asserted that the pail was not separated from the living area, was emptied once a day (around 11.30 a.m.) and that the stench from it was unbearable. The window was covered with a metal shutter. 17. The artificial light was never switched off, disturbing the applicant’s sleep. There was no water in the cell; the wash stand was situated in the hospital’s basement and inmates were taken there once a day. No laundry facilities were available. Detainees were allowed to take a shower once a week, but between July and September 2003 they had had to wash in cold water. 18. Only one hour’s exercise was available every day, and for the rest of the day inmates remained in their cells. Detainees repeatedly complained about the inadequate conditions to a commission from the local administration, the Federal Service for the Execution of Sentences and the Prosecutor’s Office, which visited the hospital every Wednesday, but were told that there were no financial resources available to improve their situation. 19. From 4 July to 12 September 2003 the applicant was kept in the prison hospital in cell no. 4, which measured 7.7 sq. m. From 3 July to 22 July there were four inmates; from 22 July to 19 August, three inmates; from 19 to 26 August 2003 two inmates; and from 26 August to 12 September 2003 three inmates. From 22 June to 9 July 2004 and from 19 November to 10 December 2004 the applicant was held in cell no. 3, which also measured 7.7 sq. m., with three other inmates during the former period and two other inmates during the latter one. 20. The cells had been ventilated naturally through the windows; both cells were also equipped with the mandatory ventilation system. The cells had natural and artificial light. The partition around the toilet offered sufficient privacy and there was a dining table for four persons. Once a week the detainees had the opportunity to take a shower and to change their bedding. Laundry facilities were available, and the hot water had never been cut off. Access to water was unrestricted. 21. On 24 and 25 June 2003 the applicant underwent a medical examination and was diagnosed with suspected tuberculosis. On 4 July 2003 he was transferred to the prison hospital, where he underwent a further X-ray examination on 9 July 2003. In the course of a check-up, tuberculosis in the right lung was detected. 22. After initial treatment with further prescriptions, on 12 September 2003 the applicant was transferred back to the IK-3 of the Ryazan Region despite having alleged that he felt unwell. An X-ray examination conducted on 22 October 2003 showed that the applicant’s tuberculosis was advancing. In the hospital the applicant was treated with ethambutol, isoniazid and rifampicin. In the IK-3 he was given a stronger analogue of rifampicin – myrin-p. According to the applicant, no liver-protective medication, which should normally accompany such a strong anti-tuberculosis treatment, was offered. Additionally, an inguinal hernia was detected, but the required operation was never conducted. This lack of necessary treatment led to a skin disease and poor eyesight. 23. The Government submitted the applicant’s medical records from IK-3 and the prison hospital, which confirmed that since the applicant had been diagnosed with tuberculosis he had been regularly examined and all the necessary medication for his condition had been provided. The list of tests submitted by the Government included regular x-rays, advanced blood tests, further clinical tests and examinations by a number of specialists, including a tuberculosis specialist, an ophthalmologist, a surgeon, and a dermatologist, who prescribed necessary treatment. Two x-rays conducted in June and November 2004 showed a “positive dynamic of the tuberculosis process and dispersion of niduses of tuberculosis”. On 25 June 2004 the applicant was discharged from the hospital with a final diagnosis of infiltrative tuberculosis of the upper lobe of the right lung in the phase of dispersion. As concerns the inguinal hernia which the applicant had been suffering from since 1976, an operation was recommended after a full recovery from tuberculosis had been made. 24. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space per male convict in correctional colonies and five square meters in medico-prophylactic penitentiary institutions. 25. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in penitentiary institutions reads as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system.... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding... Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2)... 46. In the course of the 2001 visit, the CPT’s delegation also noted that the regular supply of anti-tuberculosis drugs in sufficient quantities was ensured in the regions visited. This is another important achievement... 92. ...Hardly any complaints were heard about the quality and quantity of the food served. Prisoners with tuberculosis and HIV positive prisoners benefited from a special diet which entitled them to milk and margarine. However, a verification of the food stocks by a medical member of the delegation revealed that prisoners rarely consumed meat. Further, the level of proteins in the prisoners’ diet was rather low... The CPT recommends that: - efforts be made to decrease occupancy levels in the dormitories with the most cramped conditions ..., inter alia through a more even allocation of prisoners between the units; as already indicated (cf. paragraph 53 of the report on the 1999 periodic visit, document CPT (2000) 7), the aim should be to provide in due course a minimum living space of 4 m² per prisoner...