Постановление европейского суда по правам человека от 02.06.2005<дело новоселов (novoselov) против россии> [англ.]

in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy..."
THE LAW
I. Alleged violation of Article 3 of the Convention
33. The applicant complained under Article 3 of the Convention about the conditions of his detention in facility No. 18/3 of Novorossiysk and the damage to his health sustained during the detention. Article 3 reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Submissions of the parties
34. The applicant submitted that throughout the term of his
detention, the facility had been severely overcrowded, with the
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result that each inmate had been afforded less than 1 m of floor
space. The overcrowding produced devastating effects on him, to
which the CPT consistently referred in its reports (in particular,
7th General Report, § 13). An additional aspect of the crammed and
insalubrious conditions was the lack of any partition separating
the lavatory pan from the living area and, in particular, from the
dining table fixed to the floor barely one metre away. The
ventilation did not function most of the time and steel plates
fitted to cell windows blocked access of fresh air (cf., 11th
General Report, § 30). The lack of adequate ventilation was
further aggravated by a general tolerance to smoking in the cell.
For the applicant, who was a non-smoker, that was another severe,
inescapable effect of the overcrowding. Other factors indicating
the degrading character of the conditions of detention were the
appalling quality of nutrition, the absence of bedding, swarming
of insects, and the inadequate supplies of detergents. In the
detention the applicant contracted scabies; he was given some
treatment but was not isolated from other inmates. He twice had
high fever and by the time of his release, he lost 15 kg in weight
and was generally exhausted.
35. In support of his submissions the applicant referred to the reports "on situation with human rights in the Krasnodar Region" produced by the regional NGO, the "Krasnodar Human Rights Centre", in 1999 and 2000, that had recorded general problems in penitentiary institutions in the Krasnodar Region, such as overcrowding, the inadequate quality of food, the shortage of medical equipment and medicines and the spread of tuberculosis and AIDS. The applicant produced a handwritten statement by Mr Vdovin who had been detained in cells nos. 23 and 76 of the same facility from 28 November 1998 to May 1999. The applicant also referred to the medical certificate of 5 May 1999 (see paragraph 25 above).
36. The Government conceded that the applicant had been detained "during the period when the detention facilities were overcrowded". They submitted that "the overcrowding of that detention facility (as well as of many other similar facilities at the material time) was caused by objective reasons (such as the high delinquency rate, the lack of State funding sufficient to maintain the standard of floor space for all detainees)". However, in their view, the facility administration applied its best efforts to ensure the conditions of detention compatible with the requirements of Russian laws. Finally, they submitted that the domestic courts had rightly refused to award compensation to the applicant as no fault on the part of the facility personnel could have been established.
37. The Government claimed that the applicant had failed to support his allegations of degrading treatment with appropriate evidence. There is no indication that the detention adversely affected his health. The issuing of a medical certificate of 5 May 1999 is not recorded in the registration files of clinic No. 1 of Novorossiysk. Nor did the applicant produce a copy of relevant pages of his medical record or any other certificates showing that he had contracted scabies or suffered from emaciation.
B. The Court"s assessment
38. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim"s behaviour (Labita v. Italy, judgment of 6 April 2000, Reports of Judgments and Decisions 2000-IV, § 119). However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity 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 ({Valasinas} <*> v. Lithuania, No. 44558/98, §§ 100 - 101, ECHR 2001-VIII).
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
39. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his 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 ({Valasinas}, cited above, § 102; {Kudla} v. Poland [GC], No. 30210/96, § 94, ECHR 2000-XI). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant"s specific allegations (Dougoz v. Greece, judgment of 6 March 2001, Reports 2001-II, § 46). The duration of detention is also a relevant factor.
40. The Court notes that in the present case the parties have disputed the actual conditions of the applicant"s detention at facility No. IZ-18/3 of Novorossiysk. However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation of the parties, because it may find a violation of Article 3 on the basis of the facts that have been presented or undisputed by the respondent Government, for the following reasons.
41. The main characteristic, which the parties have in
principle agreed upon, is the number of inmates who were held in
the applicant"s cells at the material time. The applicant alleged
that the cells had been overpopulated; the Government did not
dispute this allegation (see paragraphs 15 and 36 above). It
appears that the applicant spent the entire six-month term of his
2
detention in cells that measured 42 m and accommodated up to 51
inmates, for whom 28 or 30 bunk beds were available. He was thus
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afforded less than 1 m of personal space and shared a sleeping
place with other inmates, taking turns with them to get a rest.
Save for one hour of daily outside exercise, the applicant was
confined to his cell for 23 hours a day. In these circumstances,
the extreme lack of space weighs heavily as an aspect to be taken
into account for the purpose of establishing whether the impugned
detention conditions were "degrading" from the point of view of
Article 3.
42. In this connection the Court recalls that in the Peers
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case even a much bigger cell - namely that of 7 m for two inmates
- was noted as a relevant aspect for finding a violation of
Article 3, albeit in that case the space factor was coupled with
the established lack of ventilation and lighting (Peers v. Greece,
No. 28524/95, §§ 70 - 72, ECHR 2001-III). The applicant"s
situation was also comparable with that in the Kalashnikov case,
where the applicant had been confined to a space measuring less
2
than 2 m . In that case the Court held that such a degree of
overcrowding raised in itself an issue under Article 3 of the
Convention (Kalashnikov v. Russia, No. 47095/99, §§ 96 - 97, ECHR
2002-VI). By contrast, in some other cases no violation of Article
3 was found, as the restricted space in the sleeping facilities
was compensated by the freedom of movement enjoyed by the
detainees during the day-time ({Valasinas}, cited above, §§ 103
and 107; Nurmagomedov v. Russia (dec.), No. 30138/02, 16 September
2004).
43. Hence, as in those cases, the Court considers the extreme lack of space to be the focal point for its analysis of compatibility of the conditions of the applicant"s detention with Article 3. The fact that the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him the feelings of fear, anguish and inferiority capable of humiliating and debasing him (Peers and Kalashnikov, cited above, loc. cit.; see also the CPT"s 11th General Report [CPT/Inf (2001) 16], § 29).
44. Furthermore, while in the present case it cannot be established "beyond reasonable doubt" that the ventilation, heating, lighting or sanitary conditions in the facility were unacceptable from the point of view of Article 3, the Court nonetheless notes the Government"s admissions that the cell windows were covered with metal shutters blocking access of fresh air and natural light and that the applicant had twice fallen ill with fever and contracted dermatitis while in detention (see paragraphs 17 and 23 above). These aspects, while not in themselves capable of justifying the notion of "degrading" treatment, are relevant in addition to the focal factor of the severe overcrowding, to show that the applicant"s detention conditions went beyond the threshold tolerated by Article 3 of the Convention.
45. Finally, as regards the Government"s submissions that the overcrowding was due to objective reasons and that the facility officials could not be held liable for it, the Court reiterates that, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Article 3 (Peers v. Greece, cited above, loc. cit.; Kalashnikov v. Russia, cited above, § 101). Even if there had been no fault on the part of the facility officials, it should be emphasised that the Governments are answerable under the Convention for the acts of any State agency since what is in issue in all cases before the Court is the international responsibility of the State (Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, § 40).
46. The Court therefore finds that there has been a violation of Article 3 of the Convention.
II. Application of Article 41 of the Convention
47. 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."
A. Damage
48. The applicant claimed 12,000 euros (EUR) in respect of compensation for non-pecuniary damage. He submitted that adverse physical and mental effects of degrading conditions of detention, such as physical emaciation and feelings of humiliation, distress and anxiety, cannot be compensated solely by the finding of a violation. He referred to comparable awards in the cases of Peers v. Greece (No. 28524/95, ECHR 2001-III, 5,000,000 Greek drachmas [approximately EUR 14,600]) and McGlinchey and Others v. the United Kingdom (No. 50390/99, ECHR 2003-V, EUR 11,500).
49. The Government contested his claims as excessive and unjust. In their view, an eventual award should be made with regard to that in the case of Kalashnikov v. Russia, in which the Court awarded EUR 5,000 as compensation for violations of the applicant"s rights under Articles 3, 5 and 6, although Mr Kalashnikov"s term of detention was much longer.
50. The Court accepts that the applicant suffered humiliation and distress because of the degrading conditions of his detention. Making its assessment on an equitable basis and taking into account, in particular, the term of the applicant"s detention, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
51. The applicant claimed 1,150 euros (EUR) for 23 hours of work of Ms Vedernikova in Moscow, 1,000 British pounds for 10 hours of work of Messrs Leach and Bowring in London, and 16,590 Russian roubles (RUR) in respect of their travel expenses relating to their visit to Krasnodar for a meeting with him. He further claimed 20 per cent of the amount awarded, which would be due under a contingency agreement with Mr Shamparov who represented him in the domestic proceedings.
52. The Government contested the claim for costs. They noted that the power of attorney issued to Mr Shamparov had already expired and that London counsel were not the applicant"s representatives before the Court.
53. According to the Court"s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.
54. As regards the domestic proceedings, it appears that Mr Shamparov offered legal advice to the applicant in many domestic proceedings, to which the applicant was a party. Since the applicant"s other complaints were declared inadmissible at earlier stages, the Court considers it reasonable to take into account only the fees paid to Mr Shamparov in the civil proceedings concerning compensation for inhuman conditions of detention. On the basis of documents in its possession,

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