CASE OF GULIYEV v. RUSSIA
Partly inadmissible;Violations of Art. 3;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
6. The applicant was born in 1965 and lives in the village of Zheshart in the Komi Republic. 7. On 24 January 2000 policemen of the Ukhta Town Police Department arrested the applicant pursuant to an international arrest warrant issued by the Khanlarskiy District Prosecutor’s Office of Azerbaijan. Azeri authorities suspected the applicant of theft and abuse of position. The applicant was placed in the Ukhta Town temporary detention unit. 8. On the same day the Ukhta Town Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion of involuntary manslaughter. 9. The applicant was apprised of his rights as a defendant, including the right to have the assistance of a lawyer and interpreter free of charge. He waived his right to interpretation services, insisting that he spoke Russian fluently, but he accepted the assistance of legal aid counsel Ms G. 10. On 4 February 2000 the applicant’s detention was authorised and he was transferred to detention facility no. IZ-7/2 in Sosnogorsk. 11. The Ukhta Town Prosecutor extended the applicant’s detention a number of times, relying on the gravity of the charges against him. The applicant unsuccessfully challenged the extension orders before the Sosnogorsk Town Court. 12. On 7 May 2001 the Ukhta Town Court found the applicant guilty of involuntary manslaughter and sentenced him to seven years’ imprisonment. On 9 November 2001 the Supreme Court of the Komi Republic upheld the conviction. 13. On 26 November 2004 the applicant was released on probation. 14. From 24 January to 4 February 2000 the applicant was held in the Ukhta Town temporary detention unit. 15. According to extracts from a registration log drawn up by the administration of the detention unit, and produced by the Government, from 24 January to 3 February 2000 the applicant was kept in cell no. 12 which measured 10.4 square metres and usually accommodated 3 to 4 inmates. On 3 and 4 February 2000 the applicant stayed in cell no. 8 which measured 10.1 square metres. On 3 February 2000 he shared that cell with two other detainees and on 4 February 2000 he was detained alone. The Government, relying on inspection certificates of 12 May and 30 November 2000, 16 April 2001 and 14 December 2005, argued that the design capacity of the cells had not been exceeded, although due to the large number of detainees it had been impossible to provide them with personal space in accordance with hygiene standards. The Government further submitted that cell no. 12 had had four sleeping places and at all times the applicant had had an individual bunk. The Government produced copies of black-and-white photos of the cell showing two single-tier metal bunks. 16. The applicant did not dispute the cell measurements. He alleged, however, that he had shared cell no. 12 with eight detainees. That cell had had two single-tier metal bunks and inmates had to take turns to sleep. 17. The Government, relying on the inspection certificates (cited above) and identical reports drawn up by warders in 2005, submitted that all cells were equipped with a lavatory pan, a tap, a sink and ventilation shaft. The lavatory pan was placed in the corner of the cell, near the door. The Government produced photos showing that the “lavatory pan” mentioned by them had in fact been a hole in the floor of the cell which had been separated from the living area by a metal partition. Cell no. 12 had a window which measured 170 centimetres in length and 85 centimetres in width. Photos produced by the Government show that the window had been covered with two layers of thick horizontal and vertical bars blocking access to natural air and light. The window was double glazed and had a casement which measured 30 centimetres in length and 26 centimetres in width. Inmates could request warders to open the casement to bring in fresh air. Twice a day warders turned on a ventilation system. The cells were constantly lit by a bulb placed in a niche above the door. The walls were covered with so-called “shuba”, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them. Inmates were allowed to take a shower once a week for fifteen minutes. A central-heating system was installed in the building. However, there had been no hot water since 1996. Warders boiled water and gave it to detainees on request. The applicant was not provided with bedding because the detention ward had scarce financial resources. The Government also submitted copies of contracts according to which the disinfestation and extermination of insects had been done twice a month and twice a year respectively. 18. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infested with insects but the administration did not provide any insecticide. It was extremely cold because the casement was open all the time and warders refused to close it. It was impossible to take a shower as the shower room was permanently closed. Inmates had to sleep either on metal bunks or on the floor using their clothes as bedding. No toiletries were provided. 19. From 4 February 2000 to 25 January 2002 the applicant was detained in facility no. IZ-7/2 in Sosnogorsk. 20. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant occupied three cells which measured 32.3, 16.2 and 32.3 square metres respectively. The two larger cells had eight sleeping places and housed eight detainees. The smaller cell had four bunks and accommodated four inmates. In their plea concerning the number of detainees in the cells the Government also relied on statements by warders who had worked in the facility while the applicant had been detained there. 21. The Government further submitted that each cell had a large window which measured 110 centimetres in width and 120 to 130 centimetres in length. Windows were covered with metal bars and were triple-glazed. Inmates could easily open windows to allow fresh air into the cells. The cell was equipped with ventilation shafts situated above the door and in the ceiling. The cells were constantly lit with artificial lighting. Two cells had a lavatory pan and a sink. The lavatory pan was separated from the living area with a two-metre-high tile brick wall. Inmates could take a shower once a week for fifteen minutes. The applicant was provided with bedding. He could also use his own bedding. The applicant was given food three times a day “in accordance with the established norms”. 22. The applicant contested the Government’s description, save for the information on the size of the cells. He further submitted that he had been detained in severely overcrowded cells. He stated that the cell population was two or three times greater than the capacity for which the cells had been designed. The applicant produced a written statement by an inmate, Mr G., who had been detained with him in one of the bigger cells. Mr G. attested that the cell had had eight bunks but it had housed 12 to 20 detainees. The applicant further provided an identical description of the conditions of his detention in facility no. IZ-7/2 to those in the Ukhta Town temporary detention unit. Mr G. affirmed the accuracy of the applicant’s description. 23. On 25 January 2002 the applicant, pursuant to the judgment of 7 May 2001, was sent from detention facility no. IZ-7/2 to serve his sentence in a correctional colony in the Mordoviya Republic. On 28 January 2002 he arrived to the town of Nizhniy Novgorod, where he was placed in detention facility no. 1. On 5 February 2002 the applicant was sent to the village of Ruzayevka in the Mordoviya Republic where he arrived the following day. 24. The Government, relying on itineraries and certificates issued in December 2005 by various officials of the Federal Service for Execution of Sentences, submitted that the applicant had been transported in a special security compartment in a railway carriage. Before placement on a train the applicant was body searched. The Government further noted that pursuant to legal regulations every two hours in the course of the transport a sentry had been relieved and a new sentry had checked and “moved around” detainees in order to “check doors, walls, the ceiling and presence of detainees”. During his sixty-five hour trip from Sosnogorsk to Nizhniy Novgorod the applicant was detained alone in compartment no. 7, which measured two square metres and had three sleeping places. In the course of his twelve-hour transport from Nizhniy Novgorod to Ruzayevka the applicant stayed in a similar compartment with four other detainees. Before his transport to Nizhniy Novgorod the applicant was provided with a two-day dry ration which included 1000 grams of bread, 1400 grams of tinned vegetables and meat, 30 grams of sugar, 20 grams of salt and four grams of tea. Before his transport to Ruzayevka he was given a one-day dry ration. The carriage was naturally ventilated. It was equipped with two lavatories which detainees could use. There was also a boiler which warders used to boil water. The applicant was allowed to use the lavatory on request and was provided with drinking water. The compartment had a lattice door but no window. The compartment was constantly lit by lighting strips and bulbs. 25. The applicant disputed the number of inmates transported in one compartment. He argued that at all times he had been kept with five other detainees in compartments which had been designed to accommodate three persons. He was not provided with food or hot water during the transport. He and his fellow inmates were constantly checked and body searched by wardens. 26. 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 four square metres of personal space in his or her cell. 27. 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 temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 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.”