MERZAĻIJEVS v. LATVIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney
1. The applicant, Mr Raimonds Merzaļijevs, is a Latvian national who was born in 1951 and is serving a prison sentence in Riga. He was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was arrested on 18 December 2006. 5. Between 16 October 2008 and 15 April 2010 he was held in the Grīva wing of Daugavgrīva Prison (Daugavgrīvas cietums). 6. Between 30 October and 13 November 2009 the applicant was subjected to strip searches. In particular: - on 30 October 2009 owing to his being escorted from the Grīva wing to Daugavpils wing in Daugavgrīva Prison; - on 2 November 2009 because he was being escorted from Daugavgrīva Prison to a court in Rēzekne; - on 6 November 2009 for the purposes of being escorted from the court in Rēzekne to Daugavgrīva Prison; in his letter to the Court of 28 May 2010 the applicant submitted that on 6 November 2009 he had not been escorted anywhere; and - on 13 November 2009 – twice, prior to being escorted to a court in Daugavpils and upon his return from the court. In their additional observations, the Government specified that the first search had been partial and that the second search had taken place on the premises of the courthouse. 7. The applicant submitted that on 13 November 2009 he had been searched a further five times, when being taken from the holding cell to the courtroom and back on two occasions, and prior to his return to the prison. As a result, on 13 November 2009 he had been searched on a total of seven occasions, on three of which he had been directed to strip naked. In response to the Government’s observations, he averred that on 13 November 2009 he had been searched eight times and each time had been told to undress. 8. According to the Government, body searches in Daugavgrīva Prison were conducted in a special room in the prison admissions unit, by two prison warders, one of whom carried out the search while the other filled out the forms. During the search on 13 November 2009 on the premises of the courthouse the applicant had been asked to squat once. 9. The applicant, however, stated that he had been searched in the presence of other inmates and, while naked, had been told to squat up to five times or to lie down on the floor. As two or three inmates had been searched at the same time, seven or eight prison warders had been present. 10. The applicant submitted that for the whole day on 13 November 2009, when he was taken for a court hearing to Daugavpils, he had not been provided with food. 11. Referring to the escort log of Daugavgrīva Prison, the Government contended that on 13 November 2009 the applicant had left the prison at 8.55 a.m. and had returned the same day at 11.35 a.m. They stressed that according to the order issued by the governor of Daugavgrīva prison on 1 November 2008, breakfast was served between 7 a.m. and 7.40 a.m. and lunch between 12 p.m. and 1 p.m. The applicant had been removed from his prison cell at around 8.20 a.m. and had returned to the cell at around noon. 12. The applicant disagreed. Replying to the Government’s observations, he stated that, owing to the length of the various procedures prior to leaving the prison premises, it was not even theoretically possible that on the critical day, 13 November 2009, he could have had breakfast. Furthermore, breakfast was served to inmates in their cells, which the applicant had left at around 6.30 a.m. He had returned to his cell at around 4 p.m., after lunch had been served. In addition, during the journey to the court in Daugavpils and his time there he had had no access to drinking water. 13. The applicant submitted that when he had been placed in Daugavgrīva Prison the temperature in the cells had been low, between five and eight degrees Celsius. A member of the prison staff, however, had refused to issue him with winter clothing, stating that he already had his own clothing. In the applicant’s submission, he had indeed been wearing a leather jacket, but it had been for the summer only and had subsequently been taken away from him. Furthermore, during the search on 6 November 2009 the applicant’s autumn jacket had been taken away. He had been left with a summer jacket without any lining. 14. The applicant submitted that on certain dates in January 2010 he had been required to shovel snow in the prison yard. In his application to the Court the applicant specified two sets of dates, namely 14, 15 and 18 January 2010 and 15, 18 and 19 January 2010. He could not refuse to perform that work. If he had, he would have been liable to a penalty of fifteen days’ confinement in a disciplinary cell for disobeying prison orders. The temperature outside had been between minus fifteen and minus twenty degrees Celsius and the applicant had suffered greatly from the cold. Furthermore, he had not been in good health. 15. As a result, he had once again started having problems with his heart. On 19 January 2010 he had been placed in the prison hospital. 16. On 28 January 2010 the applicant’s hospital cell had been inspected by three officers. At their request the applicant had also relayed to them his complaint about the jacket confiscated on 6 November 2009. Although the officers promised to clarify the matter, the applicant had not received any response. 17. On 1 February 2010 the applicant was discharged from the prison hospital. 18. According to the applicant’s submissions in his application to the Court and his comments in reply to the Government’s observations, on several occasions he had raised the issue of the cold conditions in the prison and the lack of winter clothing. In autumn 2008 he had submitted a written complaint to the authorities in Daugavgrīva Prison. On 7 September 2009 he had written a letter to the Prisons Administration and in November 2009 he had complained to prison staff. In December 2009 he had complained to the commission during their inspection of his prison cell. He had also complained verbally and in writing at other times but had not recorded those complaints. 19. The Government furnished a copy of a handwritten complaint by the applicant dated 5 January 2009, addressed to the Ministry of Justice. The stamp on the complaint indicated that it had been received at the Ministry of Justice on the much later date of 14 January 2010. In his reply to the Government’s observations the applicant stated that he had written to the Ministry of Justice on 5 January 2010. 20. In the complaint he stated that during the search on 6 November 2009 his autumn jacket had been taken from him. The prison warders had explained that he had two jackets but that by law he could keep only one. The applicant had tried to explain that the other jacket was in fact a summer pullover, but to no avail. As a result, he had been prevented from taking walks during the winter. 21. In the same complaint he stated that in mid-December 2009 he had raised the issue of the jacket with prison staff. He had been told that he needed to write a request to the prison governor and that “maybe [he] would be given the jacket”. In reply to the applicant’s question as to how soon his request would be reviewed, he had been told “within thirty days”. In his complaint to the Ministry of Justice the applicant criticised the fact that he would therefore receive his jacket in mid-February 2010. 22. On 25 January 2010 the Ministry of Justice informed the applicant that the matter of appropriate clothing fell within the competence of the Prisons Administration, to which it had accordingly been transmitted for examination. The Ministry advised the applicant that the conduct of a member of prison staff could be the subject of a complaint to the head of the Prisons Administration and subsequently to a court. 23. In the course of examination of the applicant’s complaint, the Prisons Administration requested information from Daugavgrīva Prison on 5 February 2010. On 16 February 2010 the prison replied that the applicant could request permission in writing to retrieve his personal items from the stores. The applicant however had made no such request. Daugavgrīva Prison further stated that on 10 February 2010 that procedure had been explained to the applicant. 24. On 24 February 2010 the Prisons Administration replied to the applicant, stating that, according to its information, he had been provided with clothing appropriate to the season. On 10 February 2010 when the procedure for retrieving items from the stores had been explained to the applicant, he had refused to write any request. The possibility of retrieving clothing from the stores could be considered on submission of the relevant request by the applicant. 25. In his reply to the Government’s observations the applicant disputed the assertion that the procedure for retrieving his clothes had been explained to him on 10 February 2010. He further maintained that by law he was not required to submit a written request asking the prison to provide him with clothing. That duty had to be fulfilled by the prison of its own initiative. Furthermore, he was entitled to submit such a request verbally. 26. In his letter to the Court dated 26 May 2010 the applicant stated that on 3 March 2010 he had submitted a written request to the governor of Daugavgrīva Prison, indicating that he lacked seasonally appropriate clothing and that anyone who had informed the Prisons Administration to the contrary had been a liar. 27. The applicant indicated that in response to that request he had been summoned on 5 March 2010 to the office of his prison unit inspector. Because the applicant had accused a source of information of lying he had been threatened with placement in an isolation cell and with beating. The inspector had then examined the applicant’s belongings. Having found no winter clothing he had questioned the applicant’s cellmates. The applicant had then been taken to the stores and given all his clothes. 28. The applicant submitted that on 16 March 2010 he had written a letter to the Prisons Administration in connection with its reply of 24 February 2010 (see paragraph 24 above), because he considered that the Administration had been misinformed about the matter of his clothing. On 19 March 2010 the letter was returned to the applicant with a request to place it in an envelope and pay for the postage. The letter was accompanied by a note citing Article 50(4) of the Sentence Enforcement Code (Sodu izpildes kodekss) (see paragraph 33 below). The applicant exchanged two days’ worth of white bread rations for an envelope and a stamp and eventually managed to dispatch his letter on 6 April 2010. 29. It appears that on 22 March 2010 the Prisons Administration responded to a further request by the applicant dated 11 February 2010 regarding the issue of warm clothing. It referred back to its earlier reply of 24 February 2010 (see paragraph 24 above). It indicated that the applicant’s personal items were in the prison stores and that they could be obtained if the applicant sent a written request to the prison governor. 30. On 11 May 2010 the Prisons Administration replied to the applicant’s request of 6 April 2010 in which he had criticised its response of 22 March 2010. The Prisons Administration did not address that part of the request as it had already responded on the matter. 31. The Administrative Procedure Law (Administratīvā procesa likums) took effect on 1 February 2004. It provides, among other things, for the right to challenge administrative acts (administratīvais akts) and actions of the public authorities (faktiskā rīcība) before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012). 32. Section 124 of the Administrative Procedure Law makes a State fee (valsts nodeva) payable for the lodging of a complaint or an appeal in proceedings before the administrative courts. Section 128(3) of the Law reads as follows: “(3) A court or a judge, in the light of a natural person’s financial situation, may fully or partly exempt the person from the payment of the State fee at the person’s request.” 33. Article 50(4) of the Sentence Enforcement Code reads as follows: “A convicted person’s correspondence with State institutions shall be paid for out of the funds of the custodial institution, provided the person concerned does not have funds on his or her own card and he or she is challenging an administrative act or the action of a public authority issued by those institutions or is sending a request for the receipt of State-provided legal aid.”