Постановление ЕСПЧ от 12.11.2015 <Дело Бутко (Butko) против России> (жалоба N 32036/10) [англ.] Часть 2

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THE LAW

  1. Alleged violations of Articles 3 and 13 of the Convention
  1. The applicant complained that the conditions of his detention in Russian penitentiary facilities, including remand prison IZ-55/3 and correctional colonies IK-9 and IK-3, had been inhuman and degrading and that he had not had an effective domestic remedy for his grievances. He referred to Articles 3 and 13 of the Convention, which read:

Article 3

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 13

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

  1. The Government’s request to exclude an unsigned application form
  1. The Government pointed out that the application form of 25 July 2011 indicated that the applicant did not have a representative, but it had been signed by a person other than the applicant himself. In their view, the form was therefore invalid and ought to be excluded from the case file.
  2. The applicant replied that he had submitted three completed application forms to the Court. The first one, dated 29 July 2010, had concerned the conditions of his detention in remand prison IZ-55/3 and in facilities IK-9 and IK-3 in the Omsk Region. The second form of 11 October 2010 had indeed been signed by his sister and described the pressure to which he had been allegedly subjected in medical facility LIU-2. Since it contained allegations of unlawful conduct on the part of the facility officers, he had been unable to send it directly from the facility and had asked his sister to do so. The third form had been sent on 15 August 2011 and had referred to the conditions of his detention in correctional facility IK-6. The applicant submitted that he fully endorsed the contents of the application form dated 11 October 2010.
  3. The Court observes that it is difficult to match the application forms to which the parties referred by their dates to the three forms it has in its possession. It will therefore proceed on the basis of the forms that are included in the case file. Two handwritten application forms of 3 May and 26 July 2010 bear the applicant’s signature and contain his complaints about inhuman and degrading treatment in remand prison IZ-55/3 and facility IK-9 and about the absence of an effective domestic remedy. The application form of 26 July 2010 contains also a complaint about the ill-treatment in the quarantine unit of the IK-3 facility and the general conditions of detention there. The applicant’s case was communicated to the Government on the basis of those application forms and the complaints made therein.
  4. The third application form is a typed document which was not signed by the applicant or by any person authorised by him. Mr Butko claimed that he feared reprisals from the facility management for stating his grievances in writing and sending them to the Court. However, his claim is not borne out by the material included in the case file, which contains a number of letters he had sent from the same facility in November 2010. The Court finds no circumstances which could have prevented the applicant — either during his stay at the medical facility or shortly after his transfer to IK-6 on 7 December 2010 — from giving authority to his sister or any other individual to represent him before the Court and to submit a duly completed application form on his behalf. It follows that this application form did not comply with the requirements of Rule 45 §§ 1 and 3 of the Rules of Court and need not be examined by the Court.
  5. It is finally noted that Mr Butko’s application form of 15 August 2011 was registered as a new application under number 66075/11. On 8 December 2011 the Court, sitting in a single-judge formation, declared that case inadmissible.
  1. Admissibility
  1. The Court will begin its examination with a verification of whether or not the admissibility criteria in Article 35 of the Convention have been met. Paragraph 1 of Article 35 provides:

«The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.»

  1. Exhaustion of domestic remedies
  1. The Government submitted that the applicant had failed to exhaust the effective domestic remedies because he had not brought his grievances before a court, a supervising prosecutor or the facility management. The applicant asserted that he had not had access to any effective domestic remedies.
  2. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about inhuman conditions of detention. The Court thus finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 70, 10 January 2012).
  1. Compliance with the six-month time-limit
  1. In the process of exhausting domestic remedies, the six-month period runs from the date of the final decision. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of cognisance of that act or its effect on, or prejudice to, the applicant. In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Ananyev and Others, cited above, § 72, with further references).
  2. An applicant’s detention can be regarded as a «continuing situation» in cases where it has been repeatedly effected in the same type of detention facility in substantially similar conditions. The applicant’s release or transfer to a different type of detention regime, both within and outside the facility, puts an end to the «continuing situation» (see Yartsev v. Russia (dec.), no. 13776/11, §§ 28 — 29, 26 March 2013, and Ananyev and Others, cited above, § 78).
  3. The applicant complained about the conditions of his detention in more than one facility. The Court has found above that only his application forms of 3 May and 26 July 2010 complied with the requirements of Rule 45 §§ 1 and 3 of the Rules of Court. The complaint concerning the conditions of detention in remand prison IZ-55/3, which ended at the latest in May 2009, was first raised in the application form dated 3 May 2010 and is therefore belated (see paragraphs 7 and 25 above). The same holds true for his complaint about the ill-treatment in the quarantine unit which had allegedly taken place no later than 19 January 2010 but was first raised in the application form of 26 July 2010 (see paragraphs 16 and 25 above).
  4. By contrast, the applicant’s detention in the IK-9 and IK-3 facilities ended on 12 January and 26 March 2010, respectively, that is to say within the six months preceding the submission of the application forms of 3 May and 26 July 2010, respectively. Accordingly, this part of the application is not belated.
  1. Conclusion as to the admissibility
  1. In the light of the parties’ factual submissions, the Court considers that the applicant’s complaints about the conditions in facility IK-9 and the absence of an effective domestic remedy raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. The Court declares them admissible and joins the issue of exhaustion of domestic remedies to the merits of the complaint under Article 13 of the Convention.
  2. The situation is different, however, with regard to the complaint about the general conditions of detention in facility IK-3 (see paragraph 16 above). There are no factual elements in the applicant’s submissions that would allow the Court to establish that he was subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
  1. Merits
  1. Exhaustion of domestic remedies and compliance with Article 13 of the Convention

(a) Submissions by the parties

  1. The Government pointed out that supervising prosecutors had inspected at regular intervals the material conditions of detention in the facilities and had enjoined the colony’s management to remedy the violations. As a consequence of the prosecutors’ interventions, an additional lavatory was built in the IK-9 facility. The Government cited two judicial decisions which, in their view, demonstrated that an application to a court was an effective judicial remedy. In the first case, the Magadan Town Court made an award, on 5 April 2011, to Mr S. in respect of compensation for non-pecuniary damage caused by his unlawful placement in a disciplinary cell. In the second case, by judgment of 4 August 2011, the Elizovskiy District Court of the Kamchatka Region found in favour of Mr D., who had contracted tuberculosis while in detention and had not received treatment in a timely fashion. The Government claimed that the applicant’s complaint had not been based on any known structural problem and that he was therefore required to put his grievances before the domestic authorities prior to lodging his application with the Court (here they referred to Ismatullayev v. Russia (dec.), no. 29687/09, 6 March 2012).
  2. In the applicant’s view, a judicial complaint against unlawful actions by the facility management would be open to the risk of retaliation from prison guards and it could not have brought about any improvement in a situation where all detainees were held in substantially similar conditions. As to the possibility of claiming compensation for unsatisfactory conditions of detention, claims of this nature were not sufficiently established in judicial practice to be considered effective. They would also have had no preventive effect as regards future violations and a potential claimant would be required to endure inhuman conditions of detention for a considerable period of time before filing such a complaint. He would also be faced with the nearly insurmountable problem of collecting appropriate evidence: the majority of potential witnesses would have been transferred to different facilities by that time. In addition, it has become established judicial practice in Russian courts to deny the detained claimant the opportunity of attending the court hearing to state his position to the court in person (here he referred to Artyomov v. Russia, no. 14146/02, 27 May 2010; Shilbergs v. Russia, no. 20075/03, 17 December 2009; and Skorobogatykh v. Russia, no. 4871/03, 22 December 2009).

(b) The general principles

  1. The Court reiterates that an applicant is normally required to have recourse only to those remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II, and Ananyev and Others, cited above, § 94, with further references).
  2. Where the fundamental right to protection against torture and inhuman or degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3 of the Convention. Indeed, the special importance attached by the Convention to that provision requires, in the Court’s view, that the States parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Had it been otherwise, the prospect of future compensation would have legitimised particularly severe suffering in breach of this core provision of the Convention (see Ananyev and Others, cited above, § 98, and Vladimir Romanov v. Russia, no. 41461/02, § 78, 24 July 2008).
  3. In the context of preventive remedies, the domestic authority or court dealing with the case must be able to grant relief which may, depending on the nature of the underlying problem, consist either in measures that affect only the complainant or — for instance where overcrowding is concerned — in wider measures that are capable of resolving situations of massive and concurrent violations of prisoners’ rights resulting from inadequate conditions in a given correctional facility (see Ananyev and Others, cited above, § 219, and Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, § 188, 27 January 2015). In the context of compensatory remedies, monetary compensation should be accessible to any current or former inmate who has been held in inhuman or degrading conditions and has made an application to this effect. A finding that the conditions fell short of the requirements of Article 3 of the Convention will give rise to a strong presumption that they have caused non-pecuniary damage to the aggrieved person, and the level of compensation awarded for non-pecuniary damage must not be unreasonable in comparison with the awards made by the Court in similar cases (see Ananyev and Others, cited above, §§ 228 — 230). Lastly, prisoners must be able to avail themselves of remedies without having to fear that they will incur punishment or negative consequences for doing so (see Neshkov and Others, cited above, § 191, and section 70 of the 2006 European Prison Rules, cited in paragraph 21 above).

(c) Application of the principles in the instant case

  1. The Court has on many occasions examined the effectiveness of the domestic remedies suggested by the Russian Government in cases concerning inadequate conditions of an applicant’s detention and found them to be lacking in many regards. On that basis, it has frequently rejected the Government’s objection concerning the non-exhaustion of domestic remedies and has also found a violation of Article 13 of the Convention. The Court has held, in particular, that the Government were unable to show what redress could have been afforded to the applicant by a prosecutor, a court, or any other State agency, bearing in mind that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not concern the applicant’s personal situation alone (see, generally, the authorities cited in Ananyev and Others, § 99 and — specifically with regard to correctional colonies — Sergey Babushkin v. Russia, no. 5993/08, §§ 41 — 45, 28 November 2013, and Kulikov v. Russia, no. 48562/06, § 31, 27 November 2012). The applicant in the instant case complained about the general situation of overcrowding in the IK-9 facility and an insufficient number of sanitary amenities, that is to say, a structural problem that affected not just the applicant alone but the entire facility population.
  2. The Code on the Execution of Penalties establishes a detainee’s right to submit complaints about inadequate conditions of detention to various domestic authorities (Article 12 § 4, cited in paragraph 17 above). In order to secure genuinely effective redress for the alleged violation of the Convention rights, the legal framework for handling such complaints must satisfy the requirements of Article 13 of the Convention and the proceedings must be capable of offering adequate relief to the aggrieved individual.
  3. As regards complaints addressed to the executive or non-judicial authorities, the Court has observed that a facility management or its hierarchical superiors do not have a sufficiently independent standpoint to consider complaints that call into question the way in which they have discharged their duty to maintain the appropriate conditions of detention (see Ananyev and Others, cited above, § 101, and Dirdizov v. Russia, no. 41461/10, § 75, 27 November 2012). Neither an ombudsman nor a public supervision commission is invested with the authority to issue legally binding decisions. Their task is to collect information and to highlight general issues concerning human rights compliance in places of detention (see Sergey Babushkin, §§ 41 — 42, and Ananyev and Others, §§ 105 — 106, both cited above).
  4. Periodic checks by supervising prosecutors undoubtedly play an important part in securing appropriate conditions of detention, but infringement reports or orders issued by a prosecutor are primarily matters between the supervising authority and the supervised body and are not geared towards providing preventive or compensatory redress to the aggrieved individual. There is no legal requirement compelling the prosecutor to hear the complainant or ensure his or her effective participation in the ensuing proceedings. The complainant would not be a party to any proceedings and would only be entitled to obtain information about the way in which the supervisory body dealt with the complaint (see Ananyev and Others, § 104, and Dirdizov, § 76, both cited above).
  5. Finally, a civil claim for compensation under the tort provisions of the Civil Code, such as those the Government cited by way of example, cannot offer the applicant any redress other than a purely compensatory award and cannot put an end to a situation involving an ongoing violation, such as persistent overcrowding in a given detention facility, for instance. Furthermore, even in cases where Russian courts have awarded compensation for conditions of detention that were unsatisfactory in terms of the domestic legal requirements, the level of the compensation has been unreasonably low in comparison with the awards made by the Court in similar cases (see Ananyev and Others, cited above, §§ 113 — 118). The case-law to which the Government referred in their submissions was not relevant to the issue of general overcrowding in a correctional facility: in one case the claimant had been unlawfully placed in a disciplinary cell, in the other medical assistance had been unreasonably delayed.
  6. In the light of these considerations, the Court rejects the Government’s objection concerning the non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy for the applicant’s grievance about inadequate conditions of detention in the IK-9 facility.
  1. Compliance with Article 3 of the Convention

(a) Submissions by the parties

  1. The applicant submitted that the conditions of his detention in the IK-9 facility had been in breach of Article 3. The entire facility had been overcrowded. Inmates could hardly circulate in the dormitory because the passages between furniture were so narrow. The auxiliary premises (pantry, recreation room and washing room) were too small for the entire unit of a hundred prisoners. The number of toilets was insufficient and they were located in unheated outdoor structures some 120 metres away from the barracks. During the night, prisoners were allowed to go to the toilet just in their underwear, even in winter when the temperatures plunged to -30 or -35 degrees C. The bathhouse was overcrowded and very cold.
  2. The Government asserted that the conditions of the applicant’s stay in the IK-9 facility, including the living space per inmate, lighting, heating, ventilation, sanitary facilities and food standards were «generally in compliance» with the requirements of domestic law and of Article 3 of the Convention. The applicant had an individual sleeping place and the personal space per inmate was in excess of two square metres. The number of toilets, at the ratio of one toilet per fifteen inmates, was sufficient. The Government pointed out that, in contrast to cases concerning detention conditions in remand prisons, the applicant had enjoyed a greater freedom of movement during the daytime and had had unobstructed access to natural light and air (here they referred to Orlov v. Russia, no. 29652/04, § 77, 21 June 2011; Pitalev v. Russia, no. 34393/03, § 38, 30 July 2009; Solovyev v. Russia (dec.), no. 76114/01, 27 September 2007; and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).

(b) The general principles

  1. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
  2. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with any detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see v. Poland [GC], no. 30210/96, §§ 92 — 94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).
  3. An extreme lack of space in a prison cell or dormitory weighs heavily as an aspect to be taken into account for the purpose of establishing whether or not the impugned detention conditions were «degrading» from the point of view of Article 3. In Ananyev and Others, the Court set out the relevant standards for deciding whether or not there has been a violation of Article 3 on account of a lack of personal space. In particular, regard must be had to the following three elements: (a) each detainee must have an individual sleeping place; (b) each detainee must have at his disposal at least 3 square metres of floor space; and (c) the overall floor space must be such as to allow detainees to move freely between items of furniture. The absence of any of the above elements creates in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of Article 3 (see Ananyev and Others, cited above, § 148, see also Olszewski v. Poland, no. 21880/03, § 98, 2 April 2013).
  4. In a number of cases where the applicants have had at their disposal less than three square metres of floor space, the Court has considered the overcrowding to be so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, most recently, Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 77, 8 January 2013; Tatishvili v. Greece, no. 26452/11, § 43, 31 July 2014; v. Montenegro, no. 67320/10, §§ 123 — 127, 22 July 2014; and T. and A. v. Turkey, no. 47146/11, § 96, 21 October 2014).

(c) Application of the principles in the instant case

  1. The Court declared admissible the applicant’s complaint about the conditions of his detention in the IK-9 facility. He was held there from 9 October 2008 until 12 January 2010, with the exception of a short stay in a Moscow and Omsk prisons between 9 April and 28 May 2009. The overall duration of the period under consideration was therefore slightly in excess of one year and one month.
  2. The penitentiary facility at issue is a «correctional colony» or «penal colony» (исправительная колония) in the Russian system of classification, that is to say a facility of a type designed for long-term accommodation of convicted detainees for the entire duration of their sentences. It differs from remand prisons in its layout and detention regime, and the Court will take into account its special characteristics when assessing the conditions of the applicant’s detention (see Idalov v. Russia [GC], no. 5826/03, § 94, 22 May 2012, with further references).
  3. As in other Russian post-conviction facilities, prisoners in the IK-9 facility were divided into «units» or «brigades» (бригада). Each unit was accommodated in a separate self-contained compound comprising a dormitory, a recreation or TV room, a washroom and a food storage room or pantry. The daily timetable determined the time slots during which prisoners were allowed to be present in each area (see paragraphs 18 and 19 above).
  4. The applicant was assigned to Unit 6. The precise number of prisoners in the unit is a matter of dispute between the parties. While the recent certificates obtained from the facility director and the original documents gave the maximum number as eighty-six persons, the applicant maintained that the unit population had exceeded one hundred individuals. The floor plan indicates that the dormitory of the applicant’s unit measured 164 square metres. It follows that, even if the lower occupancy figure were to be accepted, the available personal space per prisoner fell even below the domestic statutory requirement of two square metres. In previous cases against Russia concerning conditions of detention in correctional colonies, the Court has found a violation of Article 3 of the Convention in similar circumstances (see Sergey Babushkin, cited above, § 56; Yepishin v. Russia, no. 591/07, § 65, 27 June 2013, and Kulikov, cited above, § 37).
  5. Furthermore, the Court notes that a large part of the dormitory floor area was taken up by furniture such as bunk beds, bed stands and stools. Passages between two beds, lengthwise, were as narrow as thirty-five centimetres and the central aisle between two rows of beds was barely twice that. This arrangement obviously left inmates with very little space in which they could easily move around. An acute lack of space preventing inmates from moving freely between items of furniture has been held to be indicative of degrading treatment exceeding the minimum threshold of severity under Article 3 of the Convention (see Ananyev and Others, cited above, § 148, and also Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011; Ushakov v. Russia, no. 10641/09, § 42, 25 October 2011; and Aleksandr Makarov v. Russia, no. 15217/07, § 94, 12 March 2009).
  6. In addition to the focal issue of overcrowding, it is the very principle of accommodating so many prisoners in the same dormitory that has been previously given rise to serious concern on the part of the Court and the Committee for the Prevention of Torture (CPT). Reporting on the conditions of detention in correctional facilities in Eastern Europe, the CPT found in particular that large-capacity dormitories frequently accommodated prisoners under extremely cramped and insalubrious conditions and inevitably entailed a lack of privacy for prisoners in their everyday lives (see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 137, 17 January 2012, and also the relevant extracts from the CPT reports cited in paragraph 20 above). In Fetisov and Others, the Court did not find a violation of Article 3 in connection with the accommodation of a large number of prisoners in the same dormitory because it could not be established that it was filled beyond the intended capacity. However, in cases where the applicants were housed, together with dozens of other inmates, in a dormitory in which they had at their disposal only minimal personal space, the Court held that the level of privacy available to them was insufficient to satisfy the requirements of Article 3 of the Convention (see Yepishin, cited above, § 65; Kulikov, cited above, § 37; Iacov Stanciu v. Romania, no. 35972/05, § 177, 24 July 2012, and Samaras and Others v. Greece, no. 11463/09, §§ 51 — 66, 28 February 2012). The circumstances of the present case, in which the applicant shared the cramped dormitory with at least eighty inmates, are relevantly similar to the latter cases.
  7. It also appears that the applicant could not work or exercise if he so wished (see, by contrast, Sergey Babushkin, cited above, § 53, and Samaras and Others, cited above, § 64). While access to prison work is not a requirement under Article 3 or any other provision of the Convention, the Court concurs with the CPT that the possibility of engaging in purposeful activities of a varied nature, including work, training, education and sport, is of crucial importance to the well-being of sentenced prisoners and conducive to their rehabilitation and reintegration (see Iacov Stanciu, cited above, § 178, and point 33 of the CPT’s 11th General Report cited in paragraph 20 above). In the applicant’s own submission, in the daytime the detainees were excluded from the dormitory and had the choice between staying outdoors and going to the recreation room. That room measured less than fifty square metres and the equipment was limited to a single TV set and a few writing desks and stools. Given the size of the room and the number of prisoners in the applicant’s unit, it is obvious that in cold or rainy weather the recreation room would be severely overcrowded, even more so than the dormitory. This further exacerbated the overcrowding problem in the daytime.
  8. Finally, the Court will turn its attention to the state of the sanitary installations in the applicant’s colony. It reiterates that access to properly equipped and hygienic sanitary facilities is of paramount importance for maintaining the inmates’ sense of personal dignity. Not only are hygiene and cleanliness integral parts of the respect that individuals owe to their bodies and to the neighbours with whom they share premises for long periods of time, they also constitute a condition, and at the same time a necessity, for the conservation of health. A truly humane environment is not possible without ready access to toilet facilities or the possibility of keeping one’s body clean (see Ananyev and Others, cited above, § 156, with further references to the applicable standards, and also Iacov Stanciu, cited above, § 175).
  9. In previous cases against Russia the Court has noted that the time normally afforded to remand prisoners for taking a shower has been limited to between fifteen and twenty minutes once a week, which is manifestly insufficient for maintaining proper bodily hygiene. The way the showering procedure was organised did not afford detainees even elementary privacy, since they were taken to shower halls as a group, and the number of functioning shower heads was occasionally too small to accommodate all of them (see Goroshchenya v. Russia, no. 38711/03, § 71, 22 April 2010; Shilbergs, cited above, § 97; Aleksandr Makarov, cited above, § 99; Seleznev v. Russia, no. 15591/03, § 44, 26 June 2008; Grishin v. Russia, no. 30983/02, § 94, 15 November 2007; and Romanov v. Russia, no. 63993/00, § 79, 20 October 2005). As regards convicted detainees in correctional colonies, the Court has found that the number of functioning sinks and toilets was manifestly insufficient in relation to the number of users (see Yepishin, § 65, and Kulikov, § 37, both cited above).
  10. In the instant case, there are concordant indications in the applicant’s submissions and in the evidential material produced by the Government that nearly the entire facility population, that is more than 1,000 persons, had at their disposal just twenty-eight toilets which were located in two independent structures (see paragraphs 8, 9, 14 and 15 above). An inspector from the prosecutor’s office described their insufficient number, the lack of privacy for users and their deplorable state of cleanliness as a «gross violation of [Russian] law as regards material conditions of detention» (see paragraph 9 above). Furthermore, the conditions for maintaining personal hygiene could hardly be considered satisfactory. Groups of prisoners as large as one or two units, that is up to two hundred individuals, were given a weekly time slot of approximately three hours to wash themselves in the central bath and to do their laundry. The bath had only eight shower heads and two plunge pools, their number being obviously inadequate in relation to the number of users and the time afforded to them. It does not appear that the colony’s management adopted any measures to remedy the situation by extending the hours of operation or increasing the frequency of showers.
  11. The foregoing considerations are sufficient to enable the Court to find that the effect of overcrowding aggravated on account of a lack of purposeful activities and inadequate state of sanitary installations exposed the applicant to treatment which must be considered inhuman and degrading within the meaning of Article 3 of the Convention. There has therefore been a breach of this provision in relation to the conditions in which the applicant was kept in the IK-9 facility.
  1. Application of Article 41 of the Convention
  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

  1. Damage
  1. The applicant claimed 220,800 euros (EUR) in respect of non-pecuniary damage.
  2. The Government considered that the claim was excessive.
  3. The Court awards the applicant EUR 5,000 in respect of compensation for non-pecuniary damage, plus any tax that may be chargeable.
  1. Costs and expenses
  1. The applicant also claimed EUR 2,100 for the costs and expenses incurred before the Court.
  2. The Government pointed out that there was no evidence that the applicant had actually paid for his representative’s legal services and that no legal-services agreement had been provided.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,200 for the proceedings before the Court, plus any tax that may be chargeable to the applicant, payable into his representative’s bank account.
  1. Default interest
  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

  1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint about the conditions of the applicant’s detention and rejects it;
  2. Declares the complaints about the conditions of the applicant’s detention in the IK-9 facility and about the absence of an effective domestic remedy in this respect admissible and the remainder of the application inadmissible;
  3. Holds that there has been a violation of Article 13 of the Convention;
  4. Holds that there has been a violation of Article 3 of the Convention;
  5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable into his representative’s bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President

Registrar

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