CASE OF ANDREY FROLOV v. RUSSIA
Violation of Art. 3 (substantive aspect)
Christos Rozakis
5. The applicant was born in 1967 and lived until his arrest in St. Petersburg. He is now serving a prison sentence in the Leningrad Region. 6. On 18 November 1998 the applicant was arrested by police officers, taken to a police station and allegedly beaten up. He was released on the same day. The applicant says that he complained to a prosecutor about the beatings on 7 December 1998. 7. On 14 January 1999 the applicant was arrested on suspicion of robbery and taken to police station no. 43 in St. Petersburg, where he alleges he was seriously assaulted by police officers. 8. From 14 to 21 January 1999 the applicant was detained in a cell in police station no. 43. On 21 January 1999 he was transferred to detention facility no. IZ-47/1 in St. Petersburg, known as “Kresty”. 9. In June 2001 the applicant asked the St. Petersburg City Court to grant him an amnesty and discontinue the criminal proceedings. On 4 July 2001 the City Court refused his request, holding that it was for the trial court to examine whether the applicant qualified for an amnesty. 10. On 4 June 2001 the St. Petersburg City Court appointed the applicant's mother to represent him. Following her appointment, she had several meetings with the applicant in the detention facility. Prison warders were always present at the meetings. 11. At the trial the applicant was represented by his mother and Ms S., of counsel. They submitted evidence and made a successful application to the St. Petersburg City Court to call additional witnesses and exclude certain items of evidence presented by the prosecution. 12. On 20 September 2001 the St. Petersburg City Court found the applicant guilty of several counts of robbery, establishing a criminal enterprise and the aggravated offence of selling criminally acquired property and sentenced him to sixteen years' imprisonment. It based its judgment on the applicant's partial confession in open court, the oral evidence of the co-defendants, victims and witnesses at the trial, expert opinions and real evidence. In determining the sentence, the City Court took into consideration the assistance the applicant had given to the investigating authorities in solving the case and identifying other participants in the criminal enterprise. 13. The applicant appealed against the judgment of 20 September 2001, complaining, in particular, that the City Court had not applied an amnesty law. 14. On 9 December 2002 the Supreme Court of the Russian Federation upheld the judgment of 20 September 2001, endorsing the reasons given by the City Court. It also held that the St. Petersburg City Court had lawfully refused to apply the amnesty law of 28 June 2002 to the applicant because of the especially serious nature of his offences. 15. From 21 January 1999 to 16 February 2003 the applicant was held in detention facility no. IZ-47/1 in St. Petersburg. 16. According to a certificate issued on 11 November 2005 by the facility governor, and produced by the Government, the applicant was held in eleven different cells during the reference period. Each cell measured 8 square metres and had 6 bunks. According to the Government, no information on the number of inmates in the cells was available as the documents had been destroyed. They further submitted that the applicant had at all times had eight hours' sleep. 17. The applicant did not dispute the cell measurements or the number of bunks. However, he alleged that he had usually shared the cells with 12 to 14 detainees. Given the lack of beds, inmates slept in shifts. 18. The Government, relying on further certificates issued on 11 November 2005 by the facility governor, submitted that all cells were equipped with a lavatory pan and sink. The pan was separated from the living area by a curtain. According to the Government, the pan was “in a satisfactory sanitary condition”. The cells were disinfected once a week. Inmates were allowed to take a shower once a week. They were provided with bedding at the same interval. The cells were naturally ventilated through the windows which were not covered with metal shutters. Each cell also had a ventilating shaft. The Government further stated that the temperature in the cells was “normal”. Additional window-frames with glass were inserted in winter. Central heating devices were installed in the cells, which were also equipped with lamps which functioned day and night. 19. The applicant disagreed with the Government's description and submitted that the sanitary conditions were unsatisfactory. Inmates had to dry their laundry indoors, creating excessive humidity in the cells. The cells were dimly lit. Relatives provided inmates with lamps. Windows were not glazed and were covered with thick metal bars that blocked access to natural light and fresh air. It was cold in winter and in summer it was hot, stuffy and excessively damp inside. The artificial ventilation system was blocked with stones and garbage and was never cleared up. 20. The applicant also contested the Government's description of the toilet facilities. According to him, inmates had to make curtains to separate the lavatory pan from the rest of the cell. The curtains were frequently removed by warders. Inmates were allowed to take a shower once a week but no toiletries were distributed. The entire cell was afforded six minutes to shower, although there was only six shower heads. The applicant added that he had been provided with bedding when he had entered the facility on 21 January 1999, but it had not been changed since. The applicant's mother had provided him with replacement bedding when it had worn out. 21. The Government asserted that “the applicant was fed in accordance with the established legal norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. 22. The applicant submitted that the food was of an extremely low quality and in scarce supply. Meat and eggs were not provided despite the fact that they had been included in the detainees' daily diet under Government regulations. 23. The Government submitted that the applicant had at least a one-hour walk daily. 24. The applicant did not comment on this. 25. On his admission to the detention facility the applicant was given an X-ray examination. In the course of a check-up, tuberculosis changes in the right lung were detected. The applicant was placed in a special cell for further examinations and treatment and then, after being diagnosed with infiltrative tuberculosis of the upper lobe of the right lung, was transferred to the tuberculosis division. 26. The parties disputed the treatment that the applicant had received in the facility. According to a certificate of 11 November 2005 issued by the facility governor and submitted by the Government, the applicant was examined by a doctor at ten-day intervals and had chest X-rays every three months. The Government gave a detailed description of the treatment the applicant had been provided with, including the type of medicine, dose and frequency. They also furnished a copy of the applicant's medical record and medical certificates. The medical certificates indicate that the applicant is now considered to have clinically recovered from the tuberculosis. 27. The applicant argued that he was not adequately treated after he was discovered to be suffering from tuberculosis. His mother provided the necessary medicines because they had not been available in the facility. Following several complaints to various officials, the applicant started to receive treatment and his health improved. 28. On 19 June 2001 the applicant complained to the Constitutional Court of the Russian Federation about the inadequate conditions of his detention, his poor state of health and the authorities' failure to grant him an amnesty. The Constitutional Court sent the applicant's complaint to the Ministry of Justice. 29. On 22 April 2002 the Main Department of the Ministry of Justice for Execution of Sentences sent a letter to the applicant informing him that his complaints had been examined and found to be unsubstantiated. 30. On 22 May 2002 the applicant complained to the St. Petersburg Department of the Ministry of Justice that he was being held in appalling conditions. The outcome of those proceedings is unclear. 31. Article 161 § 1 of the Russian Criminal Code establishes the offence of robbery. Article 161 § 3 makes it an aggravating factor for the robbery to be committed by a criminal enterprise or a person who has already been convicted of theft or extortion. Robbery under Article 161 § 3 is punishable by a maximum sentence of twelve years' imprisonment and confiscation of property. Article 162 § 1 establishes criminal liability for the use of actual or threatened force against another in order to commit a theft. Under Article 162 § 3 such an offence committed by a criminal enterprise or a person who has been convicted of extortion or theft is punishable by a maximum sentence of fifteen years' imprisonment. Under Article 175 § 2 the unlawful sale of criminally acquired property by a group of individuals or a person who has been convicted of a theft, extortion or the sale of criminally acquired property is punishable by up to five years' imprisonment. Establishing a criminal enterprise is punishable under Article 209 § 1 by a maximum of fifteen years' imprisonment. 32. Under Article 69 § 1 of the Russian Criminal Code consecutive sentences are imposed upon a defendant who is convicted at the same time of several distinct offences (cumulative offences). Article 69 § 3 provides that the final sentence for cumulative offences, should not exceed twenty-five years' imprisonment. 33. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than 4 square metres of personal space in his or her cell. 34. Under Article 17 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) detainees are entitled to lodge, inter alia, with a court, petitions and complaints concerning violations of their rights. Article 21 provides that such complaints addressed to various State and municipal bodies and NGOs must be sent through the detention facility authorities. Complaints addressed to a prosecutor, a court or any other State body supervising the detention facility are not subjected to censorship and are sent to the addressee in a closed envelope. 35. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”