CASE OF ANANYEV AND OTHERS v. RUSSIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-1 - Continuing situation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures)
Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
7. All three applicants were remanded in custody pending trial and were held in various Russian remand prisons. Their individual circumstances are detailed below. 8. On 27 December 2006 the Presidium of the Smolensk Regional Court quashed the appellate judgment in Mr Ananyev’s criminal case and remitted the matter for a new hearing. On 20 January 2007 he was taken from the correctional colony to remand prison IZ-67/1 of Smolensk, where he stayed until 23 March 2007. 9. Mr Ananyev was held in cell 170 until 21 March 2007 and then in cell 153. Cell 170 measured 15 square metres and cell 153 – 10 square metres. They were equipped with 13 and 4 sleeping places, respectively. 10. Cell 170 accommodated 12 detainees for two weeks in January and February 2007; in the remaining period of Mr Ananyev’s detention the cell population varied from 15 to 21 persons. Cell 153 housed Mr Ananyev and one other inmate. 11. The Government submitted certificates issued on 25 June 2009 by the governor of the remand prison that listed floor surface areas and cell population, and twelve pages from the prison population register of prison IZ-67/1 relating to various dates between 20 January and 23 March 2007, as well as photographs of cells 153 and 170. 12. Mr Ananyev produced written statements from his former co-detainees, Mr S. and Mr B., both dated 27 June 2009, from which it appears that between January and April 2007 cell 170 had accommodated up to 24 persons. 13. On 19 March 2007 Mr Ananyev sent complaints about unbearable conditions of his detention to the Prosecutor General, the Smolensk town prosecutor and to the Director of the Smolensk penitentiary facilities. On 4 May 2007 the Smolensk town prosecutor informed Mr Ananyev that he had checked his complaints and that the acting governor of prison IZ-67/1 had been instructed to remedy the violations of the Suspects and Defendants Detention Act. 14. Mr and Ms Bashirov were taken into custody on 29 April 2005. Ms Bashirova was released on bail on 17 May 2005 and Mr Bashirov was transferred to remand prison IZ-30/1 of Astrakhan. On 11 March 2008 they were both found guilty of drug-related offences and sentenced to eight and a half years’ and six years’ imprisonment, respectively. Ms Bashirova was re-detained on the same day. On 15 May 2008 the Astrakhan Regional Court upheld the conviction at last instance. 15. In prison IZ-30/1, Mr Bashirov stayed in cell 83 (from 3 May to 1 July 2005 and from 27 December 2007 to 22 April 2008), cell 69 (from 1 July 2005 to 11 January 2006 and from 9 August to 30 October 2006), cell 35 (from 11 January to 9 August 2006), cell 79 (from 30 October to 18 December 2007), and cell 15 (from 22 April to 21 May 2008). From 18 to 27 December 2007 Mr Bashirov underwent treatment in a prison hospital. 16. In the same prison Ms Bashirova stayed in cell 52 (from 3 to 17 May 2005), cell 40 (from 11 to 15 March 2008) and cell 45 (from 15 March to 7 June 2008). 17. Mr Bashirov’s cells presented the following characteristics: cell 15: 23 square metres and 10 sleeping places; cell 35: 25 square metres and 10 sleeping places; cells 69 and 83: 24 square metres and 12 sleeping places; cell 79: 25 square metres and 12 sleeping places. 18. Ms Bashirova’s cells had the following measurements: cell 52: 24 square metres and 10 sleeping places; cell 50: 22 square metres and 10 sleeping places; cell 45: 19 square metres and 6 sleeping places. 19. The parties disagreed on the number of detainees. The Government submitted that the number of detainees “had not exceeded the number of sleeping places”. They relied on a certificate issued by the prison governor on 29 June 2009. The applicants gave the following cell population figures: cell 15 – 15 persons, cell 69 – 22 persons, cells 35, 50 and 83 – 14 persons, cell 79 – 20 persons, cell 52 – 30 persons on average but up to 40 persons on certain days, cell 45 – 9 persons. 20. The applicants submitted extracts from annual reports by the Ombudsman of the Astrakhan Region. The 2005 Report criticised the conditions of detention in the Astrakhan prisons: “According to the data of the Federal Penitentiary Service in the Astrakhan Region, the situation in the regional remand prisons deteriorated in 2005 and elementary rights of detainees were not respected. The number of suspects and defendants significantly increased in both remand prisons; at the end of the year their number was twice the norm. Thus, prison no. [IZ-30/]1 in the city of Astrakhan has the maximum capacity of 642 detainees; during the year it accommodated on average 1,031 persons (in 2004 – 750 persons) and at the end of the year 1,300 persons. The situation in prison no. [IZ-30/]2 in the town of Narimanov is similar... For that reason, cells in the remand prisons have constantly been overcrowded; whereas the sanitary norm is four square metres per person, the actual space was approximately two square metres. Detainees suffered from a shortage of sleeping places and were forced to take turns to sleep.” 21. The 2006 Report showed that the situation had hardly improved: “Unfortunately, it must be stated that there have been no noticeable changes for the better in 2006. Thus, a warning sent on 25 September 2006 by the Astrakhan Regional prosecutor’s office to the director of the Federal Penitentiary Service in the Astrakhan Region indicated that the conditions of detention in prisons no. 1 (Astrakhan) and no. 2 (Narimanov) ‘did not meet the hygienic, sanitary or fire-safety requirements’... The situation has further been aggravated by an extreme decrepitude of the buildings (especially in the case of prison no. 1 built in 1822) and a significant exceeding of the design capacity. The three-year trend of overcrowding is a reflection of a worsening situation and the figures clearly show this: 22. The 2007 Report acknowledged that the problem of overcrowding had remained “grave” and that prison IZ-30/1 actually accommodated 879 inmates. 23. The 2008 Report criticised the officially accepted limits: “The officially recognised maximum capacity of remand prisons which is considered acceptable raises questions. It is considered that the capacity of prison IZ-30/1 is 651 persons. Yet the global living surface of all cells is 2,232.4 square metres. A simple division of this number by 4 sq. m (the legal sanitary norm of cell space per detainee) gives us the maximum prison capacity of 558 persons. However, on 31 January 2008 the actual number of detainees in prison no. 1 was 689.” 24. The applicant Mr Bashirov also produced a copy of a letter which the Astrakhan Regional prosecutor’s office had sent to his counsel on 28 February 2008 in response to a complaint about the conditions of detention raised by another detainee. The letter stated as follows: “On 29 February [sic] 2008 a deputy district prosecutor and deputy heads of prison no. 1 in charge of logistics, the detention regime and the medical unit carried out a comprehensive technical examination of cell 79. At the time of the examination, cell 79 had twelve sleeping places but housed fifteen persons. The above-mentioned examination of cell 79 also established that similar violations had occurred in a majority of cells of the prison. In connection with the overcrowding, dilapidated state of the building and other violations of the Pre-trial Detention Act, the district prosecutor’s office sent two warnings to the director of the Federal Penitentiary Service in the Astrakhan Region already in the first quarter of 2008...” 25. Personal dignity is protected by the State and may not be undermined for any reason (Article 21 § 1). No one may be subject to torture, violence or any other cruel or degrading treatment or punishment (Article 21 § 2). 26. Detention on remand must be based on the principles of lawfulness, fairness, presumption of innocence, equality before the law, humanism, respect for human dignity and must be carried out in accordance with the Russian Constitution, international legal principles and norms and international treaties, to which Russia is a party, and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant (section 4). 27. Detention on remand may be effected in (a) remand prisons of the penitentiary system (следственные изоляторы), (b) temporary detention wards of the police (изоляторы временного содержания), and (c) temporary detention wards of the border service (section 7). 28. Detainees have, in particular, the right: to ask the prison governor for an appointment and to ask the same of the prison supervisors during their visit to the prison (section 17 § 3); to send suggestions, applications and complaints to authorities, including courts, concerning the lawfulness of their detention and violations of their lawful rights and interests (section 17 § 7); to receive free food, daily necessities and medical assistance, including during the time when they take part in investigative acts or court hearings (section 17 § 9); to have an eight-hour uninterrupted sleep at night time and a one-hour period of daily exercise (section 17 §§ 10 and 11). 29. Detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. All inmates should have at their disposal in their cell no less than four square metres of personal space (section 23). 30. The Prosecutor General and subordinate prosecutors must supervise the application of legal norms in remand prisons. Prison authorities must comply with the instructions of the supervising prosecutor in so far as they concern the detention rules as established in this Act (section 51). 31. The Ombudsman may receive complaints concerning the actions by federal and municipal State bodies or employees, provided that the complainant has previously lodged a judicial or administrative appeal in this connection (section 16 § 1). 32. Having examined the complaint, the Ombudsman may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a State official or petition the competent authorities for institution of disciplinary, administrative or criminal proceedings against the State official who has committed such a breach (section 29 § 1). 33. The Ombudsman prepares a summary of individual complaints and he or she may submit to State and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers (section 31). 37. Chapter 25 sets out the procedure for a judicial examination of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7). 38. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 39. The complaint must be lodged within three months of the date when the citizen learnt of the breach of his rights. The time-period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257). 40. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence of its own initiative (point 20 of Ruling no. 2). 41. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2). 42. The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and 3). 43. Civil rights may be protected in many forms, including in particular, recognition of the right, re-establishment of the status quo ante and the discontinuance of violations of the right or the prevention of such violations, and compensation in respect of non-pecuniary damage (Article 12). 44. An individual’s life and health, personal dignity and integrity, honour and goodwill are considered to be the person’s “non-property rights” or “intangible assets”, which are protected under the Civil Code and other laws in the cases and to the extent that the forms of the protection of civil rights listed in Article 12 correspond to the essence of the violated intangible right and to the consequences of such violation (Article 150). 45. If certain actions impairing an individual’s personal non-property rights or encroaching on other intangible assets have caused him or her non-pecuniary damage (physical or mental suffering), the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage. The amount of compensation is determined by reference to the gravity of the perpetrator’s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim’s individual characteristics (Article 151). 46. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1, 2). 47. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, and (iii) unlawful administrative punishment (Article 1070). 48. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment, and (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100). 49. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail, house arrest and detention on remand (Article 98). 50. Placement in custody may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108). A court may order detention on remand if there are sufficient reasons to believe that the suspect might abscond, re-offend or threaten a witness, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case (Article 97). The circumstances to be taken into account when imposing a preventive measure include, apart from those specified in Article 97, the seriousness of the charges and the suspect’s personality, age, health, family status, occupation and other circumstances (Article 98). 51. After arrest, the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). 52. On 29 October 2009 the Plenary Supreme Court of the Russian Federation adopted Ruling no. 22 governing the application of preventive measures, including placement of custody, bail and house arrest. It provided in particular that detention on remand may be ordered only if it is impossible to impose a more lenient preventive measure (point 2). When examining an application for a detention order, the courts were required to assess the existence of a reasonable suspicion that the person concerned had been involved in the commission of the offence (point 19). When issuing further extension orders, courts were to specify concrete facts justifying the continued detention and the supporting evidence (point 21). In addition, the courts had to explain why it was not possible to apply a more lenient measure (point 26). 53. The information submitted by the Government and the statistical data available on the website of the Judicial Department of the Supreme Court (www.cdep.ru) show the number of cases in which first-instance courts granted prosecutors’ applications for an initial detention order or for its extension, and the total number of individuals convicted or acquitted at first instance (excluding the cases that were discontinued and did not end in either a conviction or an acquittal) during the reference year: 54. By Resolution no. 540 of 5 September 2006, the Russian Government approved a federal expenditure programme under the title “Development of the Criminal Justice and Penitentiary System in 2007-2016”. As amended by subsequent Government Resolutions, the programme description reads as follows: “The contemporary criminal justice and penitentiary system is a complex of institutions and organs that enforces various types of penalties. It comprises 1,060 institutions, including 844 correctional facilities, 7 prisons and 209 remand prisons. At present more than 812,000 individuals are being held in those institutions. The number of suspects and defendants who were remanded in custody and are held in remand prisons (hereinafter – “untried prisoners”) and the number of convicted defendants in correctional facilities (hereinafter – “convicted prisoners”) do not depend on the functioning of the Federal Penitentiary Service and are chiefly determined by the level of crime in the country and the judicial practice. ... Pursuant to the requirements of the Russian Federation’s laws, untried and convicted prisoners must be allocated to cells, taking into account their character and psychological compatibility, as well as their gender and age... The sanitary norm is four square metres of floor space per untried prisoner. As a consequence of construction and renovation work carried out in remand prisons in the framework of the federal expenditure programme ‘Reform of the penitentiary system in 2002-2006’, the number of places in remand prisons in which the conditions of detention are compatible with the requirements of Russian laws will reach 94.4% by the end of 2006. The federal expenditure programme ‘Development of the Criminal Justice and Penitentiary System in 2007-2016’ (hereinafter – “the Programme”) will be a logical continuation of this work. At present only the facilities in forty Russian regions are actually capable of providing accommodation that is compatible with the sanitary norm of floor space per inmate. It follows that the remand prison population exceeds the established prison capacity, and in certain regions it does so to a significant extent. In twenty Russian regions the sanitary norm of cell surface per detainee is less than four square metres, in eighteen regions (Altay, Tyva, Sakha (Yakutiya), Chuvash and Udmurt Republics, Krasnodar, Perm, Khabarovsk, Astrakhan, Kaluga, Kostroma, Kurgan, Moscow, Novosibirsk, Sverdlovsk, Smolensk, Tomsk and Tula Regions) it is less than three square metres, which is a violation of the rights of untried prisoners. Three Russian regions (Khakassiya Republic, Yevreyskiy and Yamalo-Nenetskiy Regions) have no remand prisons, which leads to various excesses in enforcing custodial measures and carrying out investigative acts. A majority of remand prisons are located in old buildings. In recent years, constructions have collapsed in remand prisons of the Astrakhan, Magadan, Moscow, Tambov, Chita and other regions owing to their unsatisfactory condition. It is now being debated whether twelve remand prisons (Dagestan, Karelia and Chuvash Republics, Astrakhan, Belgorod, Vologda, Voronezh, Kamchatka, Kostroma, Sverdlovsk, Tambov and Tula Regions) should be put out of operation... Since Russia acceded to the Council of Europe in 1996 and ratified the European Convention on Human Rights in 1998, it has become an urgent objective to bring the penitentiary system into compliance with the Council of Europe’s legal standards, which have significantly evolved in recent years with respect to prison management and treatment of detainees... Taking into account the fact that the minimum sanitary norm per detainee is set by the [Committee for the Prevention of Torture, “CPT”] at seven square metres, the European Court refers in its judgments to this approximate standard for prisoners’ accommodation. The Council of Europe’s commentary on the European Prison Rules gives reasons to believe that the [CPT] will set the sanitary norm per inmate in the range of nine or ten square metres. At present the sanitary norm per inmate meets the international standard only in three remand prisons (Dagestan and Kalmykiya Republics, Kamchatka Region); however, two of them (Dagestan and Kamchatka) are under threat of collapse and will have to be closed... The Programme’s objective is to bring the conditions of detention of untried and convicted prisoners in line with Russian laws with a view to attaining international standards for the detention of defendants in remand prisons. The Programme’s goals are: reconstruction and construction of remand prisons in which the conditions of detention of untried prisoners are compatible with Russian laws... construction of twenty-six remand prisons, in which the conditions of detention are compatible with international standards. The most important targets of the Programme are [Annex 1]: In 2007-2009, the construction of seven new remand prisons will be completed; they will offer conditions of detention compatible with Russian standards. In addition, the construction of thirty-two remand prisons that has begun in the framework of the 2002-2006 federal expenditure programme, is about to be completed. Starting from 2010, the conditions of detention in ninety-seven old-style remand prisons will be brought into compliance with Russian laws. New-style remand prisons are being built in twenty-four Russian regions (Dagestan, Karelia, Tyva, Khakassiya and Chuvash Republics, Krasnodar, Perm, Stavropol, Astrakhan, Vladimir, Voronezh, Kamchatka, Kemerovo, Kostroma, Moscow, Novosibirsk, Samara, Leningrad, Sverdlovsk, Tomsk, Tula, Chita, Yamalo-Nenetskiy and Yevreyskiy Regions, St Petersburg). The conditions of detention in those facilities will meet the international standards (sanitary norm of seven square metres per detainee). By 2017 the total number of remand prisons – taking into account the fact that twelve prisons will probably be closed – will grow to 230. The conditions of detention will be compatible with Russian laws, and in 26 prisons also with international standards... Resources will be allocated to the Programme at the expense of the federal budget. The total amount of the financing represents 54,588,200,000 roubles [approximately 1,350,000,000 euros]...” 55. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. 45... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...” 56. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis...” 57. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation, which provides in particular as follows: “Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions; Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the appendix to this recommendation... I. Basic principles 1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate. 2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity... II. Coping with a shortage of prison places 6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set. 7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modem management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise. 8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made... III. Measures relating to the pre-trial stage Avoiding criminal proceedings - Reducing recourse to pre-trial detention 10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice, this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings. 11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre trial detention can be ordered. 12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices. 13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary.” 58. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines: “1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.” “18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2. In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. 19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 22.1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. 22.4. There shall be three meals a day with reasonable intervals between them. 22.5. Clean drinking water shall be available to prisoners at all times. 27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.” 59. On 4 June 2003 the Committee of Ministers of the Council of Europe adopted Interim Resolution CM/ResDH(2003)123 concerning the Court’s judgment in the Kalashnikov v. Russia case of 15 July 2002, final on 15 October 2002. It read in particular as follows: “Noting that the general measures required by the present judgment are closely connected to the ongoing reform of the Russian Federation’s criminal policy and the penitentiary system and welcoming progress achieved so far in this respect; Noting in particular with satisfaction the significant decrease of the overcrowding in pre-trial detention facilities (SIZOs) and the ensuing improvement of sanitary conditions, as demonstrated by the recent statistics submitted to the Committee by the Russian authorities []; Considering however that further measures are required in this field to remedy the structural problems highlighted by the present judgment; Stressing in particular the importance of prompt action by the authorities to remedy the overcrowding in those SIZOs where this problem still remains (57 out of the 89 Russian regions) and to align the sanitary conditions of detention on the requirements of the Convention, CALLS UPON the Russian authorities to continue and enhance the ongoing reforms with a view to aligning the conditions of all pre-trial detention on the requirements of the Convention, particularly as set out in the Kalashnikov judgment, so as effectively to prevent new, similar violations...” 60. On 4 March 2010 the Committee of Ministers adopted Interim Resolution CM/ResDH(2010)35 on the execution of the thirty-one judgments against Russia mainly concerning conditions of detention in remand prisons. It provided in particular as follows: “Having regard to the judgments in which the Court has found violations of Article 3 of the Convention in respect of the conditions under which the applicants were detained in remand prisons (SIZOs) which amounted to degrading treatment due, in particular, to the severe lack of personal space or to the combination of the space factor with other deficiencies of the physical detention conditions such as the impossibility of using the toilet in private, lack of ventilation, lack of access to natural light and fresh air, inadequate heating arrangements, and non-compliance with basic sanitary requirements; Recalling further that in a number of judgments the Court found violations of Article 5 due to the unlawful detention of the applicants, its excessive length in the absence of relevant and sufficient grounds for prolonged detention and the lack of effective judicial review of the lawfulness of detention; Recalling finally that the Court also found violations of Article 13 of the Convention due to the lack of an effective domestic remedy in respect of conditions of detention on remand; Recalling that the existence of structural problems and the pressing need for comprehensive general measures were stressed by the Committee and acknowledged by the Russian authorities since the adoption by the Court of the judgment in the case of Kalashnikov against Russia in 2002... As regards material conditions of detention: ... Recalling that... the creation of new places of detention cannot in itself provide a lasting solution to the problem of prison overcrowding, and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners; Noting with satisfaction in this respect the Russian authorities’ position that there should be an integrated approach to finding solutions to the problem of overcrowding in remand prisons, including in particular changes to the legal framework, practices and attitudes; As regards the number of remand prisoners: Recalling the constant position of the Committee of Ministers that, in view both of presumption of innocence and the presumption in favour of liberty, remand in custody shall be the exception rather than the norm and only a measure of last resort, and that to avoid inappropriate use of remand in custody the widest possible range of alternative, less restrictive measures shall be made available; Noting the repeated statements by the President of the Russian Federation and high-ranked officials, including the Prosecutor General and the Minister of Justice, that thousands of persons detained on remand – up to 30 % of those currently detained – should not have been deprived of their liberty, being suspected or accused of offences of low or medium gravity; Welcoming the unambiguous commitment, renewed at the highest political level, to change this unacceptable situation and to adopt urgent legislative and other measures to that effect... Noting that the statistical data provided demonstrates a slight but constant decrease in the overall number of remand prisoners; Further noting that the statistics nonetheless demonstrate wider yet still limited recourse to alternative preventive measures by the Russian courts, prosecutors and investigators... As regards remedies in respect of conditions of detention on remand: Recalling the Court’s consistent position that available remedies are considered effective if they could have prevented violations from occurring or continuing, or could have afforded the applicant appropriate redress; Noting that the statistics and several cases presented to the Committee demonstrate a developing practice before domestic courts on compensation for non-pecuniary damage sustained in relation to poor conditions of detention in remand prisons; Noting further that in view of the problems at issue, any compensatory remedy should as far as possible be supplemented by other remedies capable of preventing violations of Article 3 of the Convention; Noting in this respect information on the avenues provided by Russian legislation to address the violations of Article 3 at issue; Noting in particular the provisions of Chapter 25 of the Code of Civil Procedure and the Ruling of the Supreme Court of Russia of 10 February 2009 providing the possibility to challenge before courts acts or inaction of remand prison administrations concerning improper detention conditions; Considering however that the effectiveness of this remedy in particular with regard to overcrowding, has not yet been demonstrated; ENCOURAGES the Russian authorities to pursue the ongoing reforms with a view to aligning the conditions of detention in remand prisons with the requirements of the Convention, taking also into account the relevant standards and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, EXPRESSES CONCERN that notwithstanding the measures adopted, a number of remand prisons in Russia still do not afford the personal space guaranteed by domestic legislation, and remain overpopulated; STRONGLY ENCOURAGES the Russian authorities to give priority to reforms aiming at reducing the number of persons detained on remand and to other measures combating the overcrowding of remand facilities by • ensuring that judges, prosecutors and investigators consider and use detention on remand as a solution of last resort and make wider use of alternative preventive measures; • ensuring the availability at the national level of effective preventive and compensatory remedies allowing adequate and sufficient redress for any violation of Article 3 resulting from poor conditions of detention on remand...” 61. On 22 October 2009 the Court adopted pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05), in which it found under Article 46 of the Convention that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish remand centres had revealed a structural problem consisting of a “practice that [was] incompatible with the Convention” (see § 151 and §§ 155-156, respectively). 62. On 9 October 2009 the Polish Parliament enacted a law amending the Code of Execution of Criminal Sentences which entered into force on 6 December 2009. It introduced a number of new rules governing temporary placement of detainees in cells below the statutory norm of three square metres per inmate. 63. A new provision lists the emergency situations in which the prison governor may place a detainee for a specified period not longer than ninety days in a cell in which the area per inmate will be less than three square metres but not less than two square metres. The situations include the introduction of martial law, natural disasters, epidemics, and a threat to prison security (Article 110 § 2b). It also defines the categories of prisoners who may be held in such conditions for a period not exceeding fourteen days: recidivists, sexual offenders, escapees, temporary transfers from other prisons, etc. (§ 2c). An appeal against the governor’s decision lies with a penitentiary judge (§ 2d). Detainees who have been placed in a cell with restricted personal space shall be assured an additional half-hour of daily walks and a wider range of out-of-cell cultural, educational and sports activities (§ 2h). 64. On 17 March 2010 the Polish Supreme Court allowed a cassation appeal by a prisoner against the dismissal of his claim for compensation in respect of an infringement of his personal rights on account of severe prison overcrowding (sixteen inmates in a cell designed for eleven persons). The Supreme Court reiterated that the right to be detained in conditions respecting one’s dignity belonged to the catalogue of personal rights and that the State treasury should be liable for an infringement of such rights. It determined that the prison authorities had failed to show the existence of a “particularly justified case” for placement of detainees in an already overcrowded facility and in that way had acted unlawfully. 65. On 12 October 2010 the Court issued admissibility decisions in the cases of Łatak v. Poland (no. 52070/08) and Łomiński v. Poland (no. 33502/09) in the framework of the pilot-judgment procedure. It re-examined the applicants’ situation in the light of the above-mentioned developments at domestic level and found that the Supreme Court’s judgment of 17 March 2010 constituted a material element which was indispensable for the consolidation of the previous practice of civil courts in cases concerning claims for compensation on account of prison overcrowding (Łatak, § 80). Accordingly, the applicants were required to seek redress at domestic level and bring a civil action for compensation before Polish courts (ibid., § 81) and their applications to the Court were inadmissible for non-exhaustion of domestic remedies (§ 82). The Court also noted that the amended Article 110 § 2 of the Code of Execution of Criminal Sentences provided detainees with a new legal means for contesting the governor’s decision to reduce the available cell space. It could not therefore be excluded that applicants would be required to make use of the new complaints system before applying to the Court (§ 87).