CASE OF SEMIKHVOSTOV v. RUSSIA
Preliminary objection partially joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
6. The applicant was born in 1965 and lives in the Leningrad Region. 7. On 9 February 2001 the Solnechnogorsk Town Court of the Moscow Region found the applicant guilty of torture and manslaughter and sentenced him to thirteen and a half years’ imprisonment. 8. As is evident from medical documents provided by the applicant, prior to his arrest in October 1999 he completely lost the vision in his left eye, while the vision in his right eye was substantially impaired. In 1984 he was registered as Category 3 disabled on account of his poor eyesight. 9. In 2001, during his detention in correctional facility IK-1 in the Mordoviya Republic, the applicant was severely beaten up by warders, and sustained a serious spinal injury leading to partial paralysis of his lower extremities. He started using crutches. According to him, subsequent ill-treatment, inadequate conditions of detention and a lack of proper medical assistance caused his health to deteriorate drastically: he developed an intervertebral hernia and intravascular tumor which, in turn, resulted in the lower part of his body being completely paralysed. He became wheelchair-bound. He supported his allegations with medical certificates issued in penal medical facilities. 10. From 1 January 2006 to 27 January 2010 the applicant served his sentence in correctional facility IK-7 in the Mordoviya Republic. In January 2010 he was transferred to correctional facility IK-11 in the Mordoviya Republic, where he was detained until his release on 14 January 2013. 11. Having made no complaints about the conditions of his detention in facility IK-7, the applicant provided the following description of the conditions of his detention in facility IK-11 supporting his arguments with handwritten statements by a former inmate, D. On his arrival to the facility the applicant was assigned to Unit 5, which was not equipped to house wheelchair-bound inmates. A large number of two-tier beds were installed in the dormitory. The unit was dimly lit as the beds blocked the windows. Ninety inmates occupied the dormitory. 12. The lavatory in the dormitory was not adapted for disabled people, as the lavatory pans were not at floor level and did not have rails. The applicant always asked for assistance from at least two other inmates, as he was unable to use the lavatory on his own. Not every inmate was willing to help, which made a sensitive situation even more frustrating and embarrassing for him, since he suffered from enuresis and encopresis (bladder and bowel incontinence). Relying on D.’s statement, the applicant argued that he had received assistance from inmates in the facility in exchange for cigarettes and money. Without payment, inmates had refused to help him. The applicant stressed that in addition to their unwillingness to help him, the inmates also had to perform their own daily duties in the unit. They therefore had had no free time to help him to move around the facility. The facility administration had not taken any steps to rectify the situation. The applicant cited, as an example, behavior by two inmates, Ya. and Z., appointed by the administration of the facility to assist him. The applicant insisted that they had created “acute” situations to force him to pay more for their services. When he could not pay, he had been left without any assistance, unable to go to the lavatory and forced to defecate in his underpants. The applicant also submitted that in November 2012, once the Court had communicated his application to the Russian Government, he had only been provided with a special chair to use in a lavatory room. 13. The applicant then proceeded to describing the procedure for using the bathhouse. He had been able to use a communal bathhouse once a month when an inmate had agreed to take him there in his wheelchair. Passages throughout the correctional facility grounds had been separated by barriers approximately 20 cm high. The applicant had required assistance from at least two inmates to carry him over. In December 2010 and January 2011 he had been unable to find anyone willing to take him to the bathing facility. On the occasions he had been able to find inmates willing to help him and had paid for their services, he had been taken to the bathhouse, undressed, and carried by his hands into the cabin where he had been placed on a chair. He had showered leaning on a wall that he would not fall over. The bathing facility had not had any equipment to accommodate a disabled person such as the applicant. The shower heads had been installed too high and he had again needed to ask a detainee to help him to take a shower. Once again help had not been given willingly, as inmates had only been afforded fifteen minutes to take a shower themselves and had not wanted to spend that time helping him. 14. Citing the handwritten statement by inmate D., the applicant stressed that inmates who had wanted to use the shower cabins in the dormitories had to pay. The shower cabin had been locked and only the supervising inmates had had access to the key. 15. The applicant was not allowed to use the electric water heaters, which he needed to keep clean, in view of his suffering from bladder and bowel incontinence. He could not go to eat in the facility canteen, so was forced to eat in the dormitory, with food having been brought to him by inmates from the canteen. In November 2010 he did not eat for seven days as the food was served in dirty tableware. 16. In January 2011 the applicant did not receive his daily quota of three meals a day. A cook was assigned the task of taking food to the applicant from the facility canteen. However, given that the cook was often too busy with his usual tasks, and the fact that the food was scarce, he frequently did not receive anything. In September 2011 the applicant started receiving food in a plastic mayonnaise bowl, which was never washed or cleaned. He experienced food poisoning and stomach pain and his face, legs and arms became swollen. His requests for food to be served in suitable tableware were disregarded. 17. On 13 December 2011 the applicant was registered as Category 1 disabled, having been diagnosed with paraplegia. 18. According to the applicant, in the end of January 2012 he was sent to a prison hospital to determine whether he was fit to continue serving his sentence. On his return to facility IK-11 several days later the applicant was again assigned to Unit 5. He provided an identical description of the conditions of his detention, save for minor details. In particular, he argued that a hundred inmates shared the dormitory, which measured 60 sq. m. Thirty-five inmates suffered from HIV, various stages of tuberculosis or had various disabilities. He could not take exercise in the open air, as he could not get into his wheelchair without assistance and could not leave the dormitory as the passageway was too narrow. Lavatory pans were installed on a pedestal 40 cm above the floor and were separated from each other with partitions. He always received cold food in plastic bowls, and there was no way of heating food in the dormitory. His wheelchair was taken from him in the dormitory for security reasons. 19. The applicant and his representatives lodged a large number of complaints with various authorities. On 10 December 2010 a deputy prosecutor of the Dubravnaya District prosecutor’s office sent a letter to the applicant, informing him that the regulations concerning conditions of detention in prison facilities did not cover the provision of access ramps. However, on the prosecutor’s request ramps had been installed at the entrance to the dormitory building where the applicant was being held. The deputy prosecutor further stated that the applicant received food in the dormitory, being served by an inmate on duty who took it to him from the facility canteen. He was not asked to pay for that service and the food was served in the proper tableware and was adequate. The applicant received similar letters from various officials in 2010 and 2011. 20. On 16 January 2012 a request to institute criminal proceedings was sent to the Investigation Department in the Mordoviya Republic. That request was forwarded to the local investigation unit and the prosecutor’s office. No response followed. 21. On 14 January 2013 the applicant was released from detention. Two facility officials escorted him to St. Petersburg where, according to him, he did not have family or a home. The applicant was admitted to a hospital in the Leningrad Region, where he has remained ever since, despite his efforts to find a place to stay a charity hostel. 22. Relying on certificates issued by the governor of correctional facility IK-11, photos of the applicant’s dormitory in that facility and handwritten statements by inmates from facilities IK-7 and IK-11, the Government provided a lengthy description of the conditions of the applicant’s detention. In particular, while describing the conditions of the applicant’s detention before his transfer to facility IK-11, they argued that the applicant had been able to use his legs and had therefore not needed assistance to move around, although he had allegedly attempted to conceal that fact from the authorities. 23. The Government continued with the description of the detention conditions in facility IK-11. 24. On his arrival at facility IK-11 on 27 January 2010 the applicant had been assigned to Unit 8 where he had stayed for a month. A certificate issued by the governor of correctional facility IK-11 showed that the entrance to the dormitory building of Unit 8 had been equipped with a wheelchair ramp when the applicant had stayed there. Following the applicant’s transfer from the unit, that ramp had been dismantled. 25. The Government stated that inmates had had at least 2 sq. m of personal space. As is evident from a handwritten statement by the head of Unit 8, the applicant’s dormitory had 70 sleeping places. The Government also provided the Court with dormitory plans. According to the plan, Unit 8 was on the second floor, with at least ten stairs leading to it from the first floor. A long corridor of 32 sq. m led to the sleeping room of 142 sq. m where there were seventy bunks, seventy chairs and thirty-five bedside tables. A lavatory of 7.5 sq. m, a shower room of 5.5 sq. m and a dormitory kitchen of 14 sq. m were accessible from the corridor. 26. A photo submitted by the Government showed the applicant’s metal bed in a corner near a window. In a certificate the facility governor provided an explanation about the photo, indicating that 1.3 m of free space separated the applicant’s bed from the neighbouring bunk. 27. On 28 February 2011 the applicant had been transferred to Unit 5 where he remained until his release. Unit 5 had been on the first floor of the facility dormitory block. The dormitory had been easily accessible to the applicant. Doorways had been sufficiently wide for him to enter and move around. The Government produced handwritten statements by inmates Z. and Sem. who confirmed that the applicant had been able to enter the dormitory building without any difficulties, as the entrance door step was no more than 5 cm high. In a certificate submitted to the Court the facility governor stated that it had not been necessary to install the ramp at the entrance of the dormitory building of Unit 5, as the entrance door step had been less than 5 cm high. 28. The Government again reiterated that at least 2 sq. m of personal space had been afforded to inmates. The dormitory of Unit 5 had 53 sleeping places and was divided into three sleeping rooms. The applicant’s room measured 63.5 sq. m and contained eighteen bunks, nine bedside tables and eighteen chairs. A large square corridor of 46 sq. m separated the sleeping rooms from the remaining part of the dormitory. Six doors from the corridor led to a lavatory of 9 sq. m, a shower room of 6 sq. m, a locker room, a dormitory kitchen of 16 sq. m, a store room, and an office for the unit head. 29. The Government also submitted four photos of the dormitory, which showed rows of two-tier bunks separated by a narrow passageway. The applicant’s single-tier bed was installed by a wall in the corner near the window. According to explanations given by the facility governor, the space between the applicant’s bed and the neighbouring bunks was 1.2 m wide. 30. The Government further described the bathing facilities. Photos of the bathhouse showed a narrow tile-covered long room with at least ten high partitions dividing the room into a number of small cubicles with a shower head installed in each of them, but no handrails or other similar equipment. The bathhouse was equipped with 16 shower heads installed 2 m above the floor. A shower handle was placed 1 m above the floor. Each inmate had twenty minutes to use the bathhouse. In view of the fact that the applicant had been registered as Category 1 disabled, he had been given an additional twenty minutes to take a shower. Relying on a handwritten statement by inmate Ya., the Government observed that that inmate had helped the applicant to use the bathhouse. 31. The dormitories of Units nos. 5 and 8 were equipped with shower cabins with electric water heaters. Photos provided by the Government showed clean shower rooms which were tiled floor to ceiling. A curtain separated the shower from the remaining part of the room. The shower heads were installed at least 2 m above the floor. No handrails were installed in the rooms. The applicant had been allowed to use the cabins without any restrictions. The Government relied on statements by four inmates. As is evident from a handwritten statement by inmate G., the applicant had needed assistance of other inmates, including when using the shower cabins. Inmate Ya. also wrote that he and inmate G. had helped him to use them. 32. The lavatory of Unit 8 was equipped with four squatting pans installed on pedestals 15 cm above the floor. Partitions separated the pans from each other creating cubicles 80 cm wide. The lavatory of Unit 5 had three squatting pans. The remaining description of the facilities was similar to that of Unit 8. The Government stressed that after his arrival at facility IK-11 the applicant had been given a special chair to use in the lavatory. They provided photos of the two lavatories and of the special chair the applicant had used. The photos showed several cubicles with plastic walls and full-size doors. The cubicles with lavatory pans were separated from the remaining part of the room by a high step. Rows of sinks with taps and mirrors above them were installed along a wall. The equipment was installed at a height suitable for use by able-bodied inmates. A photo of the lavatory in Unit 5 also showed a tile-covered basin with a tap above it. Given the height of the tap, the basin had been accessible to the applicant. One of the photos showed a special chair that had been made from an ordinary wooden chair, from which the base had been removed and replaced with a toilet seat. 33. As is evident from a certificate issued by the governor of facility IK-11, the applicant had always eaten in the kitchens of the dormitory buildings during the entire period of his detention. The Government stated that he had been given hot food three times a day. The facility medical personnel had checked the quality of the food daily and had kept a record of it in the log. Food had been taken to him from the canteen by inmates. According to a statement given by the facility’s chief cook, he had supervised the process of taking food to the applicant from the canteen. The food had always been served in clean dishes and had been hot. It had been taken to the applicant by inmates Sa. and G. Those two inmates confirmed that the food had been served in thermos flasks which had been clean, and that the applicant had never made any complaints about quality or quantity of the food. Nor had he ever refused it. 34. The Government stressed that the applicant had been assisted by inmates, among them Sa., G., Ya. and Z. Those inmates had helped the applicant “willingly and free of charge” in moving around the correctional facility grounds, using the lavatory and bathhouse, and visiting the facility shop, medical unit and library. They had regularly taken food to the applicant and had fulfilled his other requests. The Government cited statements by several inmates in support of those submissions. As is evident from the inmates’ handwritten statements, the applicant had not needed assistance to move around the dormitory, as the space had been wide enough for his wheelchair. At the same time two inmates had always accompanied him if he needed to move around the facility grounds. 35. As to other aspects of detention, the applicant had also remained under permanent medical supervision, having been provided with medical care of requisite quality, subjected to necessary diagnostic and clinical procedures and consulted by specialists in respect of his illness, although he had not always complied with medical advice. The Government also stated that the applicant had had “a tendency to exaggerate his condition”. 36. According to the applicant, on 21 December 2011 his representatives from an NGO, the Fund in Defence of Inmates’ Rights, lodged an application with the Polyanskiy District Court of the Mordoviya Republic, seeking his release on health grounds. The representatives enclosed with their application a long list of illnesses from which the applicant suffered, including paraplegia, atrophy of the left eye, astigmatism in the right eye, a renal cyst, epilepsy, acute viral hepatitis C, and osteochondrosis of the lumbosacral section of the spine, complicated by the formation of a hernia and tumour. Following receipt of the complaint, the District Court authorised a forensic medical examination of the applicant to determine whether he was fit to continue serving his sentence. At the end of January 2012 he was transferred to a prison hospital for that purpose. Despite remaining there for several days, he was sent back to the correctional facility without any examination having been carried out. He further alleged that the facility officials had misplaced his documents and the court had had no choice but to discontinue the proceedings. 37. The Government disputed the applicant’s submission, having explained that a request for the applicant to be released on health grounds had been lodged at the end of December 2011 by a representative of an NGO, the Fund in Defence of Inmates’ Rights. That request had been redirected to the governor of facility IK-11 to comply with the statutory requirements. On a number of occasions between January and May 2012 facility officials had asked the applicant to sign his application for early release or to sign a power of attorney authorising a representative of the Fund to act on his behalf in court proceedings. The applicant had refused to undergo the medical examination required under Russian law to support the release application and to sign it. Given the applicant’s refusal to comply with those requirements, the court had adjourned examination of the matter and had instructed the facility officials to provide documents showing that the applicant’s state of health had called for his release. When asked again by the officials to undergo a medical examination in a prison hospital, the applicant had refused. He had notified the authorities that he had already stayed in the hospital on a number of occasions, having undergone inpatient treatment there. In June 2012 the facility governor had asked the applicant to lodge another release application. The applicant had allegedly told him that his representative had lodged a complaint with the Court and that he would be generously compensated for every day he had been detained in the correctional facility.