CASE OF SHCHERBAKOV v. RUSSIA
Violation of Art. 3
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1955 and lives in the town of Tula. 6. On 23 May 1995 the applicant was arrested and detained on suspicion of involvement in a murder. From that date and until the decision of 15 July 2002 to discontinue the proceedings the applicant remained in custody. 7. In July 1996 he was charged with several counts of murder, abduction, bribery, unlawful possession of firearms and participation in a criminal gang. 8. Between July 1996 and July 2002 various trial courts examined the applicant's case on six occasions, but each time they either returned it for an additional investigation or declined to examine it with reference to various reasons relating to jurisdiction. 9. By a decision of 15 July 2002 the Tula Regional Court (Судебная коллегия по уголовным делам Тульского областного суда, “the Regional Court”) discontinued the criminal proceedings against the applicant for lack of evidence of his involvement in the imputed crimes. The court ordered the applicant's release and recognised his right to claim damages in connection with a wrongful prosecution. 10. The authorities placed the applicant in remand prison IZ-71/1 (Следственный изолятор ИЗ-71/1, “the remand prison”) of the town of Tula on 31 October 1995. 11. Between 28 November 1999 and 12 May 2000 the applicant was held in a detention facility in the town of Ryazan. Thereafter he was returned to the remand prison and stayed there until his release on 15 July 2002. 12. The parties presented different accounts of the conditions of detention in the remand prison. 13. The applicant's cells were overcrowded. The detainees had to take turns to sleep because there was usually one sleeping place for two to three of them. There was almost no light in the cells because of the metal shutters on the windows, as well as no fresh air. The lack of air was aggravated by the detainees' smoking and the applicant, a non-smoker, became a passive smoker. There was one hour of daily exercise. The applicant's eyesight deteriorated and he developed respiratory problems. In summer the average air temperature was around thirty degrees which, combined with the high humidity level, caused skin conditions to develop. The sanitary conditions were below any reasonable standard. In particular, the cells were supplied with water for only one or two hours a day and on some days there was no water supply at all. The lack of water caused intestinal problems and in 1999 the administration had to announce quarantine in that connection. 14. The lavatory pan usually stank. It was separated from the living space by a partition which was one metre high and offered no privacy. The cells were infested with bugs, lice, cockroaches and rats and the administration did nothing to disinfect the facility. The applicant contracted scabies on two occasions. The quality of food was wholly unsatisfactory. The medical assistance was grossly inadequate. Finally, the applicant was usually convoyed by a prison officer with a dog, which he considered particularly humiliating. 15. In his observations the applicant submitted a number of statements from his acquaintance Mr S. and fellow prisoners Mr K. and Mr M. 16. In a statement dated 29 March 2007 Mr S., who at the time was a police officer employed in the department of criminal investigations of the Soviet District Department of the Interior of the town of Tula and frequently visited IZ-71/1 for professional reasons, submitted that between 1996 and 1999 he had personally witnessed overcrowding in that prison, lack of ventilation, lack of natural lighting, lack of hot water, and generally poor condition of the building and the cells. The statement mentioned specifically that cell no. 57, in which the applicant was being held at the time, measured 10 square metres and held no fewer than ten inmates. 17. In a statement dated 28 March 2007 Mr K. submitted that he had been detained in this prison along with the applicant in cell no. 12. According to him, the detainees took turns to sleep, as there were 33 sleeping places on three level beds for 28 to 36 people in the cell, which measured some thirty square metres. The windows were covered at all times and the lights were on constantly. Many inmates smoked and no ventilation system was installed in the cell to evacuate the smoke. It was stiflingly hot during summer and fresh water was only available a few hours a day. The cell was infested with lice, cockroaches and rats. Mr K. also submitted that cell no. 57 was situated in an annex building. All cells in that building were of the same size and measured 10 to 12 square metres. Cells nos. 19 and 83 were of the same size as well. No special measures had been taken by the prison administration in respect of the mentioned problems at the time of his detention. 18. In a statement dated 30 March 2007 Mr M. submitted that between February 1997 and August 2002 he had been detained in this prison along with the applicant, but in different cells. Mr M. confirmed that the prison had been constantly overcrowded, with the inmates taking turns to sleep. All the cells he occupied were unventilated and poorly lit, with limited access to water and inmates who smoked heavily. The cells were infested with various insects and the inmates were given poor quality food. Mr M. also confirmed that cell no. 57 had been situated in an annex building and measured only 10 to 12 square metres. 19. According to certificates issued on 23 December 2005 by remand prison IZ – 71/1, the applicant was kept in nine cells described as follows: cell no. 12 (31 sq. m, twenty-two bunks, average population eight inmates), cell no. 19 (9.1 sq. m, six bunks, three inmates), cell no. 36 (33.8 sq. m, twenty-one bunks, nine inmates), cell no. 53 (9.8 sq. m, six bunks, three inmates), cell no. 57 (37.8 sq. m, six bunks, three inmates), cell no. 70 (35.7 sq. m, twenty-two bunks, ten inmates), cell no. 73 (28.3 sq. m, fourteen bunks, eight inmates), cell no. 83 (11.8 sq. m, nine bunks, four to ten inmates) and cell no. 139 (22.52 sq. m, eight bunks, six inmates). The certificate concerning the number of inmates per cell contains handwritten and illegible notes with numbers of inmates. 20. Relying on a certificate issued by the remand prison administration on 23 December 2005, the Government submitted that in each of the cells and at each period of his detention the applicant had been provided with an individual sleeping place, bedding and cutlery. 21. With reference to a report on the measurement of light levels issued on 19 June 2002 by the Sanitary and Epidemiological Supervision Centre of the Department of Execution of Sentences (Центр Госсанэпиднадзора при Управлении исполнения наказаний, “the supervision centre”), the Government stressed that the light level in the cells (in particular in cell no. 12) had been above the required minimum. In 2003 the metal shutters were removed from the windows. There was natural and combined extract­and-input ventilation. According to the report on measurement of the microclimate factors carried out by the supervision centre on 19 June 2002, the average air temperature in the cells during the relevant period was between +22ºC and +25ºC. The humidity level was in conformity with the relevant requirements. 22. According to a certificate issued by the remand prison on 23 December 2005, there were no interruptions in water supply throughout the applicant's detention, except for cases of routine repairs. In those situations the cells were provided with water from special reservoirs. 23. In a record produced on 23 December 2005 the head of the remand prison attested that there had been no insects or rodents in the applicant's cells. Another certificate issued by him on the same date specified that rat extermination in the remand prison common spaces had been carried out monthly. In addition, it was possible to exterminate rats in the cells on the inmates' request but the applicant had failed to make any such requests. 24. A record produced on 23 December 2005 by the remand prison further indicated that the applicant had addressed the medical unit with complaints concerning viral infections, gastritis, headache, dystonia, dyspepsia and contact dermatitis. On each occasion the applicant had been provided with the necessary medication. The contact dermatitis was an allergic reaction to an unspecified detergent. 25. According to the applicable domestic rules, the applicant was to make his claims for pecuniary and non-pecuniary damages separately in two different courts. 26. In October 2002 the applicant requested the Regional Court to compensate him for pecuniary damage in connection with the criminal prosecution. In particular, he claimed lost earnings and legal costs. 27. On 7 February 2003 the Regional Court partly granted the applicant's claims and awarded him 442,962.41 roubles (RUB, approximately 12,900 euros (EUR)) in lost earnings for the period of his prosecution from May 1995 to July 2002 and three subsequent months. The amount was to be paid by the Ministry of Finance. The court established that the applicant's wife had borne all the legal costs in connection with the criminal proceedings against him and dismissed the applicant's claims in that respect. It advised the applicant that it was open to his wife to apply to the courts of ordinary jurisdiction to recover legal costs. By the same decision the court dismissed the rest of the applicant's claims as unfounded. 28. On 6 May 2003 the Supreme Court upheld this decision on appeal. 29. According to the applicant, the decision of 7 February 2003, as upheld on 6 May 2003, was enforced shortly after it had become final. 30. In July 2003 the applicant lodged with the Zarechenskiy District Court of Tula (“the District Court”) a civil action for non-pecuniary damages in connection with his unlawful prosecution and detention. He complained that he had been unlawfully held in detention without a court decision on the merits of the charges against him for 2,610 days. Moreover, he alleged that the courts had failed to examine his complaints about unlawfulness of his detention and the fact that his case had been on several occasions remitted for an additional investigation. 31. The applicant further complained that the conditions of his detention had been appalling. He described in detail the measurements of the cells in which he had been detained and claimed that they had been overcrowded, that he had been afforded less than 1.1 sq. m. of personal space and had had to take turns to sleep. He further described in detail other conditions of his detention which he considered degrading and humiliating. The applicant stressed that the Court had found a violation of Article 3 on account of inhuman and degrading conditions of detention in the Kalashnikov case. He submitted that the appalling conditions of pre-trial detention in that case had not been an isolated situation and referred to the Government's admissions that “... for economic reasons, conditions of detention in Russia were very unsatisfactory and fell below the requirements set for penitentiary establishments in other member States of the Council of Europe”. 32. The applicant also submitted that his unlawful prosecution and that he had been charged with particularly serious crimes had caused him mental and emotional suffering. The applicant finally noted that his suffering had been aggravated by the fact that it had been impossible for him to communicate with his family and relatives and participate in the upbringing of his children. He claimed RUB 45,521,416 (approximately EUR 1,321,760). 33. By a judgment of 13 August 2004 the District Court examined and allowed the applicant's claims, ordering the treasury to pay the applicant RUB 783,000 (approximately EUR 22,735). 34. On 10 August 2004 the Civil Chamber of the Tula Regional Court (Судебная коллегия по гражданским делам Тульского областного суда) quashed the judgment on the parties' appeals and remitted the case to the first-instance court. 35. On 19 December 2005 the District Court again examined and allowed the applicant's claims. The introductory part of the judgment referred in detail to the applicant's submissions concerning the conditions of his detention. Then the court reasoned as follows: “Pursuant to Section 1070 of the Civil Code, damage sustained by a citizen as a result of his unlawful conviction, criminal prosecution, unlawful application of measures of restraint, such as detention on remand or an undertaking not to leave a place of residence, unlawful imposition of an administrative punishment, such as arrest or correctional works, shall be compensated in full in accordance with the procedure prescribed by law by the Treasury of the Russian Federation, and, where the law so provides, by the treasury of the subject of the Federation or the municipal treasury, irrespective of whether they occurred as a result of the misconduct of investigating officials, the prosecutor's office or the courts. Under Section 151 of the Civil Code, if a citizen sustained non-pecuniary damage (physical or psychological suffering) as a result of actions violating his or her non­pecuniary rights or interests, and also where it is expressly provided for by law, the court may order the wrongdoer to pay him monetary compensation. In assessing the amount of the compensation for non-pecuniary damage, the court takes into account the degree of the wrongdoer's fault and all other relevant circumstances. The court must also take account of the intensity of physical and moral suffering relating to personal characteristics of the person who sustained the damage. Under Section 1100 of the Civil Code, compensation of non-pecuniary damage to the citizen is effected irrespective of the wrongdoer's fault if the damage was inflicted by [the citizen's] unlawful conviction, prosecution, unlawful application of a measure of restraint, such as detention or an undertaking not to leave their place of residence, unlawful imposition of an administrative punishment in the form of arrest or correctional service and dissemination of information damaging to the [citizen's] reputation. Section 1101 of the Civil Code provides that in assessing the amount of compensation to be awarded, the court must take into account the nature of the physical and psychological suffering inflicted upon the victim, and also the degree of fault on the part of the wrongdoer in cases of fault-based liability. The court assesses the intensity of the physical and psychological suffering on the basis of the factual circumstances in which the harm was caused and also the personal characteristics of the victim. According to the record of arrest issued on 23 May 1995 and the decision of 19 June 1995 remanding [the applicant] in custody, the plaintiff was placed in custody. The plaintiff's place of residence was searched on 23 May 1995. By a decision of 26 July 1996 the prosecutor's office of the Tula Region charged the plaintiff with participation in a criminal gang, robbery, concerted and aggravated murder, abduction, bribery and unlawful possession of arms. By a decision of 15 July 2002 the Tula Regional Court terminated the criminal case against [Mr] Shcherbakov...with reference to Section 24 § 1 (2) of the Code of Criminal Procedure (lack of corpus delicti). By the same decision the court lifted [Mr] Shcherbakov's measure of restraint, namely remand in custody, and recognised his right to rehabilitation. The court has established beyond doubt that [Mr] Shcherbakov's unlawful prosecution and detention had caused him mental and emotional suffering, which is to be compensated by the Treasury of the Russian Federation irrespective of the fault of the investigation and prosecution officials and in accordance with the procedure established by law. Examining the respondent's argument that the applicant had failed to prove the alleged non-pecuniary damage, the court considers that the fact of [the applicant's] criminal prosecution and lengthy detention had caused him mental and emotional suffering. The parties did not contest the unlawfulness of the plaintiff's prosecution and detention, which is also confirmed by the Tula Regional Court decision to discontinue the criminal proceedings [against him]. Furthermore, the court finds unsustainable the defendant's argument that the Ministry of Finance is not the appropriate defendant. The applicable legislation, in particular Articles 1070 and 1071 of the Civil Code, provide that compensation for non-pecuniary damage in comparable situations is recoverable from the Ministry of Finance of the Russian Federation at the expense of the Treasury of the Russian Federation. In assessing the amount of compensation to be awarded for non-pecuniary damage the court takes account of the degree of a wrongdoer's fault and other relevant circumstances, and also the intensity of the physical and moral suffering of a victim, factual circumstances which the harm was caused and personal characteristics of the victim. As to the amount of compensation, the court does not find it possible to grant [the plaintiff's] claims in full, considering the amount claimed to be excessive and rejecting the plaintiff's reference to several legal writers' works as unsustainable. Accordingly, taking into account the requirements of reasonableness and justice, the court considers it appropriate to order the defendant to pay [Mr] Shcherbakov compensation for non-pecuniary damage in connection with his criminal prosecution and detention in the amount of RUR 300,000 [approximately EUR 8,733].” 36. The parties appealed against the judgment. The applicant challenged the amount of the court award as insufficient and insisted on a larger sum. It appears that the respondent submitted, among other things, that the applicant had failed to substantiate his allegations concerning the allegedly appalling conditions of his detention. In his objections to the respondent's appeal the applicant stressed that his submissions represented well-known facts and needed no proof, because they had been acknowledged by the Russian Government in the Kalashnikov case. 37. On 2 March 2006 the Tula Regional Court examined and dismissed the parties' appeals against the District Court judgment. It appears that at the time of the appeal hearing the applicant was under criminal prosecution for extortion and was being held in detention. His counsel was present and made submissions to the appeal court on the applicant's behalf. 38. The appeal decision referred to the applicant's detailed submissions concerning the conditions of his detention. The court reasoned as follows: “It follows from the materials of the case and was established by [this] court that claimant Shcherbakov was in detention from 23 May 1995 to 15 July 2002. During that period his place of residence was searched. By a decision of 26 July 1996 the prosecutor's office of the Tula Region charged the plaintiff with participation in a criminal gang, robbery, concerted and aggravated murder, abduction, bribery and unlawful possession of arms. By a decision of 15 July 2002 the Tula Regional Court terminated the criminal case against [Mr] Shcherbakov ... by reference to Section 24 § 1 (2) of the Code of Criminal Procedure (lack of corpus delicti in his actions). By the same decision the court lifted [Mr] Shcherbakov's measure of restraint, namely remand in custody, and recognised his right to rehabilitation. Under Section 151 of the Civil Code, if a citizen sustained non-pecuniary damage (physical or moral suffering) as a result of actions violating his or her non-pecuniary rights or interests, and also where it is expressly provided by law, the court may order the wrongdoer to pay him monetary compensation. Under Section 1070 (1) of the Civil Code, damage sustained by a citizen as a result of his unlawful conviction, criminal prosecution, unlawful detention and so on, shall be compensated in full in accordance with the procedure prescribed by law by the Treasury of the Russian Federation, irrespective of whether the damage occurred as a result of misconduct on the part of investigating officials, the prosecutor's office or the courts. Pursuant to Section 1100 (3) of the Civil Code, the citizen is compensated for non­pecuniary damage irrespective of the wrongdoer's fault if the damage was inflicted as a result of his unlawful conviction, criminal prosecution, unlawful detention or an undertaking not to leave a place of residence, applied as a measure of restraint, unlawful imposition of an administrative punishment in the form of arrest or correctional works. When partly allowing [Mr] Shcherbakov's claims, the [first-instance] court correctly relied on the above-mentioned legal provisions and Section 1069 of the Civil Code of the Russian Federation and also correctly proceeded from the fact that plaintiff Shcherbakov had been unlawfully prosecuted and unlawfully detained. By decisions of 25 July 2002 the Tula Regional Court discontinued criminal proceedings against [Mr] Shcherbakov in accordance with Section 24 § 1 (2) of the Code of Criminal Procedure of the Russian Federation (lack of corpus delicti in his actions). Accordingly, the [first-instance] court's judgment ordering the Ministry of Finance of the Russian Federation to pay plaintiff Shcherbakov non-pecuniary damages in the amount of RUB 300,000 is correct. When resolving the dispute as to the amount of the compensation, the court correctly fixed it at RUB 300,000. It arrived at that conclusion in accordance with Articles 151 (2) and 1101 of the Civil Code and having taken into account specific circumstances in which the harm had been caused and evidence produced by the plaintiff and concerning the nature of physical and moral suffering inflicted on him as a result of his unlawful criminal prosecution and unlawful detention, and also the requirements of reasonableness and justice. ... As to the plaintiff's argument that, the [first-instance] court had refused to apply [a particular method] in calculating the amount of the award, it is unsustainable because, according to Article 1101 of the Civil Code, in each particular case the courts take into account particular circumstances in which mental and emotional harm had been caused, as well as the personal characteristics of the victim and the requirements of reasonableness and justice”. 39. Article 24 § 1 (2) of the Code provides that criminal proceedings should be terminated if there is lack of corpus delicti (evidence of a crime). 40. The right to rehabilitation is governed by Chapter 18 of the Code. 41. Article 133 § 2 (3) provides that a person accused of or charged with a criminal offence, against whom the criminal proceedings were terminated for, in particular, the lack of corpus delicti, has the right to rehabilitation, i.e. the right to claim damages in connection with his criminal prosecution. 42. Article 133 § 1 establishes that the right to rehabilitation includes the right to claim pecuniary and non-pecuniary damages and also the entitlement to have one's labour-, pension-, housing- and other rights restored. 43. Article 135 § 2 provides that the rehabilitated person is to address his or her claims for compensation for pecuniary damage to the body which issued the decision to discontinue the criminal proceedings against him or her. 44. Under Article 135 § 1, a rehabilitated person may recover in compensation for pecuniary damage, among other things, (a) salary, pension and other payments of which he or she was deprived in connection with his or her criminal prosecution, (b) legal costs. 45. Article 136 § 2 provides that monetary claims for compensation for non-pecuniary damage in connection with a person's criminal prosecution are brought before civil courts under the rules of civil procedure. 46. Articles 151 and 1101 of the Civil Code provide that a person may claim compensation for non-pecuniary damage (physical and psychological suffering) sustained as a result of actions violating his or her personal non­pecuniary rights and interests. In assessing the amount of compensation to be awarded a court should take into account, in particular, the intensity of a person's physical and psychological suffering, his or her personal characteristics and the particular circumstances in which the harm was caused. 47. Under Articles 1070 and 1100 of the Civil Code, the State may be held liable for damage inflicted as a result of unlawful prosecution and detention irrespective of whether they occurred as a result of relevant officials' misconduct. 48. Articles 1069 and 1070 § 2 also provide that damage sustained by a person in connection with his unlawful prosecution and detention is recoverable from the Treasury of the Russian Federation. 49. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and clothes appropriate to the season (if the inmate had no clothes of his own). 50. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide day-time and night-time illumination. 51. Rule 46 provided that prisoners were to be given three not meals a day, in accordance with the norms laid down by the Government of Russia. 52. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower. 53. Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month. 54. The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the 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 (eight 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 ... 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 ... Large­capacity 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 ...”