EUROPEAN COURT OF HUMAN RIGHTS
CASE OF BUTKO v. RUSSIA
(Application no. 32036/10)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Butko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Nielsen, Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 32036/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by a Russian national, Mr Konstantin Aleksandrovich Butko («the applicant»), on 3 May 2010.
- The applicant was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government («the Government») were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
- The applicant complained, in particular, about the appalling conditions of his detention in Russian penitentiary facilities.
- On 16 March 2012 the application was communicated to the Government in so far as it concerned the applicant’s detention in the correctional colony IK-9 in the Omsk Region.
- The circumstances of the case
- The applicant was born in 1976 in Havana, Cuba, and lived in the Moscow Region prior to his arrest on 6 April 2007.
- On 6 June 2008 the Moscow Regional Court convicted the applicant of armed robberies, illegal possession of firearms and other offences and sentenced him to twelve and a half years’ imprisonment.
- The applicant was detained in the following facilities:
(a) until September 2008: remand prison IZ-77/4 in Moscow;
(b) from 28 September to 9 October 2008: remand prison IZ-55/3 in Omsk;
(c) from 9 October 2008 to 9 April 2009: correctional colony IK-9 in the Omsk Region;
(d) from 9 April to 28 May 2009: remand prisons in Omsk and Moscow;
(e) from 28 May 2009 to 12 January 2010: correctional colony IK-9 in the Omsk Region;
(f) from 12 January to 26 March 2010: correctional colony IK-3 in the Omsk Region;
(g) between an unspecified date and 7 December 2010: the applicant received treatment at medical facility LIU-2 (UKh-16/2) in the Omsk Region;
(h) after 7 December 2010: correctional colony IK-6 in the Omsk Region.
- As regards the conditions in the IK-9 facility, the Government submitted a number of certificates concerning various aspects of Mr Butko’s detention which were issued by the facility director on 11 May 2012, as well as a copy of a director’s letter to the Omsk regional prosecutor dated 19 April 2012, from which it is apparent that Mr Butko was assigned to Unit 6 (бригада N 6). According to the floor plan, the living areas measured 281.33 sq. m, of which the dormitory comprised 164.2 sq. m. There were 86 sleeping places and the average population ranged between 80 and 86 detainees, their number being logged by the officer on duty. The dormitory was ventilated through openings in the windows. The bath and laundry complex — which detainees were allowed to visit once a week between 6.30 a.m. and 9 a.m. or between 6 p.m. and 9 p.m., two units at a time — was equipped with eight shower heads, two plunge pools and one steam room. The facility was equipped with 28 toilets, all of them located in heated areas. Toilet bowls were screened by partitions.
- The Government produced copies of the prosecutor’s infringement reports detailing various aspects of the detention regime. It appears from the report dated 24 September 2009 that the total population of the IK-9 facility was 1,350 persons. The report of 12 March 2010 read, in the relevant part, as follows:
«The inspection uncovered a number of gross violations of the law as regards material conditions of detention.
The statutory living space of two square metres per inmate… is not available in many units. For instance, the premises occupied by Unit 3 measure 232 sq. m but accommodate 126 convicted detainees.
The premises are not equipped with the necessary amenities; there are no toilets inside the living areas (except in Unit 3). There are two installations within the facility, one of them accommodating 12 toilets, the other 16, which are used by all the detainees. It follows that the statutory number of toilets (1 toilet for every 10 persons) is not available. Their sanitary condition is not satisfactory; privacy when using the toilet is not ensured…
A number of detainees who are or were serving their sentence in the facility… have written letters to the European Court of Human Rights, and the above-mentioned violations of law relating to the material conditions of detention may result in unfavourable outcomes for the State.»
- The applicant disputed the Government’s factual submissions. He submitted that there had been at least 100 detainees in Unit 6. All of them had shared one large space, filled to the maximum with double bunk beds, bedstands and stools, leaving a narrow passage of only 35 cm between beds and a marginally wider passage of 60 cm between two rows of beds. At the head of each bed, two bedstands sat on top of each other. There had been no ventilation and the windows remained sealed shut in winter. Detainees had been prohibited from staying in the dormitory from 8 am to 6 pm, and from sitting down or lying down on the bed at any time before the night call. During the day, detainees had been allowed to be either outdoors or in the recreation room.
- The recreation room (комната временных развлечений) measured approximately six by eight metres. There were six tables for reading and writing and a large number of stools. The only TV set was switched on according to the timetable. In bad weather, up to eighty detainees would remain in the recreation room without any activity.
- The washroom measured no more than six square metres, and contained five wash basins with cold water taps. No hot water was available. Detainees had been forbidden from washing any clothing, except socks or handkerchiefs, and from taking off their undershirts. They had only been allowed to clean their faces, brush their teeth, wash their hands or shave.
- The premises occupied by Unit 6 also included a pantry (комната питания), that is to say a room where inmates could keep and eat their own food. It was open from 9 a.m. to 10 a.m., from 1.30 p.m. to 2.45 p.m. and from 6 p.m. and 8.30 p.m. No more than five persons at a time were allowed into the pantry.
- Hygienic facilities were in short supply. The entire population of the facility, more than a thousand detainees, used the two available toilet installations: one had 16 pans and the other 12 pans. Pans were not screened by any partitions. Detainees were taken in groups of two units, that is to say approximately 200 persons, to the bath and laundry complex once a week. It was open from 6.30 a.m. to 9 a.m. and from 6 p.m. to 9 p.m. and was equipped with eight shower heads, two ice-cold plunge pools and a non-functioning steam room.
- The applicant adduced in evidence a written statement from his co-detainee Mr K., who had been held in the same unit in 2008 and 2009. According to his statement, on 10 December 2009, Unit 6 had contained between 112 and 120 detainees. The dormitory measured 10.1 by 12.1 metres, that is to say a total floor area of 122.21 square metres. The pantry measured no more than seven square metres. The recreation room was approximately eight metres long by five metres wide. The washroom measured 5 by 1.3 metres and was equipped with five sinks. Mr K. also confirmed that the entire facility population had had to use the two available toilet installations located in separate, unheated outhouses, one with 12 pans and the other with 20 pans.
- Upon his arrival at the IK-3 facility on 12 January 2010, Mr Butko spent the first seven days in the quarantine unit and was later assigned to Unit 9. He claimed that he had been ill-treated while quarantined. He further submitted that the dormitory of Unit 9 was cold, that the light was dim, and that the premises were generally in disrepair.
- Relevant domestic law
- Code on the Execution of Penalties
(Federal Law no. 1-FZ of 8 January 1997)
- The relevant provisions of the Code read:
Article 12: Fundamental rights of detainees
«1. Detainees have the right to receive information on their rights and duties…
- Detainees have the right to be treated courteously by the personnel of the penitentiary facility. They may not be subjected to cruel or degrading treatment or punishment…
- Detainees have the right to send suggestions, applications and complaints to the management of the penitentiary facility, to the hierarchically superior penitentiary authorities, to a court, to prosecutor’s offices, to State and municipal bodies, to the Ombudsman, to the Ombudsman for Children, to the regional ombudsperson or ombudsperson for children, to public monitoring commissions, public associations and — in accordance with international treaties to which Russia is a party — to international bodies for the protection of human rights…»
Article 99: Material conditions of detention
«1. The statutory living space per detainee in a correctional facility may not be less than two square metres, or two and a half square metres in a prison, …three square metres in a medical correctional facility and five square metres in a medical prevention facility.
- Detainees shall have the use of individual sleeping places and bed linen. They shall be provided with seasonal clothing suitable for their sex, personal hygiene articles (as a minimum a bar of soap, a toothbrush, toothpaste or powder, toilet paper, disposable razors for men and personal hygiene items for women)…»
- Internal Regulations in Correctional Facilities
- By Order no. 205 of 3 November 2005, the Ministry of Justice approved the Rules on the internal regulations in correctional facilities. The relevant parts of the Rules provide:
«15. Convicted detainees are prohibited from:
— leaving the enclosed compound comprising the living areas and workshops without the consent of the management;
— going into any dormitory other than their own…
— hanging curtains around their sleeping places or swapping sleeping places with others… or using their sleeping places outside the authorised sleep time without the consent of the management…
- A daily timetable based on the template in annex 4 shall be approved by an order signed by the director of the facility and brought to the attention of the staff and the detainees…
- In their personal time, detainees may move around… within the area of the enclosed compound, as defined by the facility management… In the period after lights-out and until wake-up, detainees may not leave the living areas without the consent of the management…»
- Annex 4 contains a model daily timetable for detainees:
«Wake-up: no later than 5 or 6 a.m.
Physical exercise (duration): up to 15 minutes.
Toilet, bed-making: up to 10 minutes.
Morning and evening head count: up to 40 minutes.
Breakfast: up to 30 minutes.
Travel to workshop: up to 40 minutes.
Work time: in accordance with labour law.
Lunch break: up to 30 minutes.
Travel back from workshop, night toilet: up to 25 minutes.
Dinner: up to 30 minutes.
Personal time: 30 to 60 minutes.
Educational activities: up to one hour.
School and professional education: see separate timetable.
Getting ready for bed: up to 10 minutes.
Uninterrupted sleep: 8 hours.»
III. Relevant Council of Europe material
- The relevant extracts from reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read:
11th General Report [CPT/Inf (2001) 16]
- 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…
Large capacity dormitories
- 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…
Life-sentenced and other long-term prisoners
- …The [long-term] prisoners should have access to a wide range of purposeful activities of a varied nature (work, preferably with vocational value; education; sport; recreation/association). Moreover, they should be able to exercise a degree of choice over the manner in which their time is spent, thus fostering a sense of autonomy and personal responsibility…»
Report to the Russian Government on the visit to Russia carried out by the CPT from 2 to 17 December 2001 [CPT/Inf (2003) 30]
«66. …at the time of the visit, the colony was operating well below its official capacity; however, this was a recent development, due to the latest amnesty in 2001. Prisoners were accommodated in detention blocks divided into two units, each comprising one or more dormitories. The dormitories measured between 80 and 160 m2 and accommodated from 12 to 54 prisoners each. Some of them were holding prisoners in cramped conditions (e.g. the living space per inmate in one of the dormitories in Unit 8 was just under 3 m2).
Dormitory equipment consisted of single and bunk beds with full bedding (however, many mattresses were in a poor condition), shared bedside lockers, a table, chairs and an occasional radio or TV set. All blocks were in a dilapidated state, especially the wooden floors and the plumbing… Nevertheless, prisoner living areas were in general clean and tidy, well-lit and ventilated.
- The sanitary facilities in the units were, in most cases, dilapidated, filthy and foul-smelling. Prisoners could use the central bathroom once a week (which was also an occasion for them to wash their clothes) and have their bed linen washed in the laundry. However, the bathroom — which was equipped with only five shower heads — was a rudimentary facility…
- The CPT recommends that:
— efforts be made to decrease occupancy levels in the dormitories with the most cramped conditions (e.g. Unit 8), inter alia through a more even allocation of prisoners between the units; as already indicated (cf. paragraph 53 of the report on the 1999 periodic visit, document CPT (2000) 7), the aim should be to provide in due course a minimum living space of 4 m2 per prisoner…»
Report to the Moldovan Government on the visit to Moldova carried out by the CPT from 14 to 24 September 2007 [CPT/Inf (2008) 39] <*>
<*> French original.
«47. …The information gathered by the CPT delegation during its 2007 visit shows that much remains to be done. In particular, overcrowding is still a problem; despite the fact that all the prisons visited were operating well below their official capacity, there was only an average of 2 m2 living space for each prisoner, rather than the standard 4 m2 specified in Moldovan legislation.
The CPT is convinced that the adoption of policies to limit or vary the number of persons sent to prison is one of the most effective means of solving the problem of overcrowding, and securing, for the long term, a standard living space of 4 m2 per prisoner in collective cells. The Committee must emphasise the need for a strategy covering both committal to and release from prison in order to ensure that imprisonment really is the last the resort…
- As a general rule, convicted prisoners are still accommodated in large dormitories. According to the Director of Prisons, the forthcoming renovation programme for national prisons should include the conversion of large dormitories into smaller living units; this has reportedly already been done in Prison No. 1 in Taraclia and Prison No. 7 in Rusca.
As the CPT has already emphasised in the past, large dormitories inevitably mean a lack of privacy for prisoners in their day-to-day lives. Furthermore, they heighten the risk of intimidation and violence… this type of accommodation tends to encourage the development of criminal sub-cultures and help maintain the cohesion of criminal organisations. They can also make it extremely difficult, indeed impossible, for staff to maintain order; in the event of disorder in prison, in particular, it is difficult to avoid bringing in outside agencies, which involves the use of considerable force. This also makes it virtually impossible to ensure the proper distribution of prisoners based on a case-by-case assessment of risks and needs. In the light of these observations, the Committee recommends that the Moldovan authorities maintain the priority status of replacing large dormitories with smaller living units…
- The prisoners were accommodated in six living units, each comprising a large dormitory and a number of adjoining facilities (e.g. a kitchenette, a room for storing clothes and a common room with a television set)…
- Even though the prison was operating below its official capacity, the prisoners had no privacy: the dormitories, with an area of between 80 and 120 m2, slept between 55 and 80 prisoners. Nevertheless, the negative consequences of this situation were mitigated by the fact that the prisoners… were free to move around all day in the prison’s enormous leisure area. Furthermore, the dormitories were clean, tidy, well-lit and adequately ventilated.
- …The sanitation in units 3, 4, 5 and 6 were out of order, which meant that prisoners in these units had to use a toilet which was located in a different building and was totally unfit for purpose (it consisted of a series of holes in the ground). For washing purposes they had access to one water tap or else had to draw water from a well.
The prisoners were allowed to use the central shower room once a week, while those engaged in work could do so every day. The shower room was in a poor state of repair and only contained ten shower fittings…
- The CPT recommends that measures be taken in Prison No. 3 in Leova in order to:
— decrease the occupancy rate in the prisoner accommodation areas, with a view to achieving the standard of at least 4 m2 of living space per prisoner;
— urgently renovate the toilets and other sanitary facilities for prisoners in units 3, 4, 5 and 6…
— consider the possibility of increasing the frequency of prisoner access to shower facilities, having regard to Rule 19.4 of the Revised European Prison Rules…»
Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 September 2009 [CPT/Inf (2011) 29]
«75. …The CPT also reiterates its recommendation that the Ukrainian authorities review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that they provide for at least 4 m2 per inmate in multi-occupancy cells in all the establishments under the authority of the Department on Enforcement of Sentences…
- Colony No. 85 had already been visited by the CPT in 1999 and 2000…
- Efforts were being made to improve material conditions. Compared to the situation observed during previous visits, prisoners generally had more living space in the dormitories. The national standard of 3 m2 of living space per inmate was observed in most dormitories (e.g. 27 beds in a dormitory of 82 m2). However, some dormitories were clearly overcrowded (e.g. 114 beds in a dormitory of some 200 m2 in Block No. 5), even if the negative consequences of this state of affairs were attenuated by the fact that prisoners were free to move around within their respective detention section. Large-capacity dormitories in Blocks Nos. 1 and 6 had been transformed into smaller living units offering more privacy and better possibilities for control by staff…
The CPT recommends that all necessary support be provided to the management of Colony No. 85 in order to realise the plans of transforming all large-capacity dormitories into smaller living units, the objective being to offer at least 4 m2 of living space per prisoner…
- Prisoners in the medium-security part of the colony [no. 89 in Dnipropetrovsk] were accommodated in six blocks. The delegation noted that in some blocks, efforts had been made to transform large-capacity dormitories into smaller living units offering more privacy and better possibilities for control by staff. However, in the other blocks, the practice of accommodating prisoners in large dormitories, with up to 70 — 80 beds, still prevailed (e.g. 76 beds in a dormitory measuring 152 m2 and holding 70 prisoners)…
- The CPT recommends that all necessary support be provided to the management of Colony No. 89 in order to transform large-capacity dormitories into smaller living units. Efforts should also be pursued to reduce the occupancy levels in the dormitories, the objective being to offer at least 4 m2 of living space per prisoner…»
Report to the Armenian Government on the visit to Armenia carried out by the CPT from 10 to 21 May 2010 [CPT/Inf (2011) 24]
«86. With respect to material conditions, the detention areas were generally well lit, adequately ventilated and clean. However, prisoners were accommodated in large-capacity dormitories. The CPT has emphasised in the past the many drawbacks and disadvantages of this type of accommodation, which are compounded when the prisoners concerned are held under cramped conditions — as was the case at Kosh Prison (e.g. 13 prisoners in a dormitory measuring about 40 m2; 54 inmates in a dormitory of some 110 m2)…
- …the Committee recommends that steps be taken to transform the large-capacity dormitories into smaller living units offering more privacy and better possibilities for control by staff and to reduce the occupancy levels in the dormitories in order to comply with the legal requirement of at least 4 m2 of living space per prisoner.
In addition, the CPT invites the Armenian authorities to increase the frequency of showers for inmates, in the light of Rule 19.4 of the European Prison Rules.»
- 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.
- Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
- Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
- 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.»
Allocation and accommodation
«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:
- 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;
- artificial light shall satisfy recognised technical standards; and
- 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.
Requests and complaints
70.1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.
70.2. If mediation seems appropriate this should be tried first.
70.3. If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.
70.4. Prisoners shall not be punished because of having made a request or lodged a complaint.
70.5. The competent authority shall take into account any written complaints from relatives of a prisoner when they have reason to believe that a prisoner’s rights have been violated.
70.6. No complaint by a legal representative or organisation concerned with the welfare of prisoners may be brought on behalf of a prisoner if the prisoner concerned does not consent to it being brought.
70.7. Prisoners are entitled to seek legal advice about complaints and appeals procedures and to legal assistance when the interests of justice require.»