Постановление Европейского суда по правам человека от 17.06.2010 «Дело Щербаков (shcherbakov) против России» [англ.]

(Application No. 23939/02)
(Strasbourg, 17.VI.2010)
*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 Shcherbakov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 23939/02) 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 Igor Nikolayevich Shcherbakov ("the applicant"), on 15 May 2002.

2. The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that the conditions of his detention in remand prison IZ-71/1 had been appalling, that his detention had been unlawful and too lengthy, that some of his appeals had remained unanswered, that the criminal proceedings had been too long and that the lengthy detention had prevented him from having contact with the family.

4. On 21 October 2005 the President of the First Section decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

I. The circumstances of the case
5. The applicant was born in 1955 and lives in the town of Tula.

A. Criminal proceedings against the applicant
6. On 23 May 1995 the applicant was arrested and detained on suspicion of involvement in a murder. From that date and until the decision of 15 July 2002 to discontinue the proceedings the applicant remained in custody.

7. In July 1996 he was charged with several counts of murder, abduction, bribery, unlawful possession of firearms and participation in a criminal gang.

8. Between July 1996 and July 2002 various trial courts examined the applicant's case on six occasions, but each time they either returned it for an additional investigation or declined to examine it with reference to various reasons relating to jurisdiction.

9. By a decision of 15 July 2002 the Tula Regional Court (Судебная коллегия по уголовным делам Тульского областного суда, "the Regional Court") discontinued the criminal proceedings against the applicant for lack of evidence of his involvement in the imputed crimes. The court ordered the applicant's release and recognised his right to claim damages in connection with a wrongful prosecution.

B. Conditions of the applicant's detention
10. The authorities placed the applicant in remand prison IZ-71/1 (Следственный изолятор ИЗ-71/1, "the remand prison") of the town of Tula on 31 October 1995.

11. Between 28 November 1999 and 12 May 2000 the applicant was held in a detention facility in the town of Ryazan. Thereafter he was returned to the remand prison and stayed there until his release on 15 July 2002.

12. The parties presented different accounts of the conditions of detention in the remand prison.

1. The applicant's account
13. The applicant's cells were overcrowded. The detainees had to take turns to sleep because there was usually one sleeping place for two to three of them. There was almost no light in the cells because of the metal shutters on the windows, as well as no fresh air. The lack of air was aggravated by the detainees' smoking and the applicant, a non-smoker, became a passive smoker. There was one hour of daily exercise. The applicant's eyesight deteriorated and he developed respiratory problems. In summer the average air temperature was around thirty degrees which, combined with the high humidity level, caused skin conditions to develop. The sanitary conditions were below any reasonable standard. In particular, the cells were supplied with water for only one or two hours a day and on some days there was no water supply at all. The lack of water caused intestinal problems and in 1999 the administration had to announce quarantine in that connection.

14. The lavatory pan usually stank. It was separated from the living space by a partition which was one metre high and offered no privacy. The cells were infested with bugs, lice, cockroaches and rats and the administration did nothing to disinfect the facility. The applicant contracted scabies on two occasions. The quality of food was wholly unsatisfactory. The medical assistance was grossly inadequate. Finally, the applicant was usually convoyed by a prison officer with a dog, which he considered particularly humiliating.

15. In his observations the applicant submitted a number of statements from his acquaintance Mr S. and fellow prisoners Mr K. and Mr M.

(a) Statement by Mr S.

16. In a statement dated 29 March 2007 Mr S., who at the time was a police officer employed in the department of criminal investigations of the Soviet District Department of the Interior of the town of Tula and frequently visited IZ-71/1 for professional reasons, submitted that between 1996 and 1999 he had personally witnessed overcrowding in that prison, lack of ventilation, lack of natural lighting, lack of hot water, and generally poor condition of the building and the cells. The statement mentioned specifically that cell No. 57, in which the applicant was being held at the time, measured 10 square metres and held no fewer than ten inmates.

(b) Statement by Mr K.

17. In a statement dated 28 March 2007 Mr K. submitted that he had been detained in this prison along with the applicant in cell No. 12. According to him, the detainees took turns to sleep, as there were 33 sleeping places on three level beds for 28 to 36 people in the cell, which measured some thirty square metres. The windows were covered at all times and the lights were on constantly. Many inmates smoked and no ventilation system was installed in the cell to evacuate the smoke. It was stiflingly hot during summer and fresh water was only available a few hours a day. The cell was infested with lice, cockroaches and rats. Mr K. also submitted that cell No. 57 was situated in an annex building. All cells in that building were of the same size and measured 10 to 12 square metres. Cells Nos. 19 and 83 were of the same size as well. No special measures had been taken by the prison administration in respect of the mentioned problems at the time of his detention.

(c) Statement by Mr M.

18. In a statement dated 30 March 2007 Mr M. submitted that between February 1997 and August 2002 he had been detained in this prison along with the applicant, but in different cells. Mr M. confirmed that the prison had been constantly overcrowded, with the inmates taking turns to sleep. All the cells he occupied were unventilated and poorly lit, with limited access to water and inmates who smoked heavily. The cells were infested with various insects and the inmates were given poor quality food. Mr M. also confirmed that cell No. 57 had been situated in an annex building and measured only 10 to 12 square metres.

2. The Government's account
19. According to certificates issued on 23 December 2005 by remand prison IZ - 71/1, the applicant was kept in nine cells described as follows: cell No. 12 (31 sq. m, twenty-two bunks, average population eight inmates), cell No. 19 (9.1 sq. m, six bunks, three inmates), cell No. 36 (33.8 sq. m, twenty-one bunks, nine inmates), cell No. 53 (9.8 sq. m, six bunks, three inmates), cell No. 57 (37.8 sq. m, six bunks, three inmates), cell No. 70 (35.7 sq. m, twenty-two bunks, ten inmates), cell No. 73 (28.3 sq. m, fourteen bunks, eight inmates), cell No. 83 (11.8 sq. m, nine bunks, four to ten inmates) and cell No. 139 (22.52 sq. m, eight bunks, six inmates). The certificate concerning the number of inmates per cell contains handwritten and illegible notes with numbers of inmates.

20. Relying on a certificate issued by the remand prison administration on 23 December 2005, the Government submitted that in each of the cells and at each period of his detention the applicant had been provided with an individual sleeping place, bedding and cutlery.

21. With reference to a report on the measurement of light levels issued on 19 June 2002 by the Sanitary and Epidemiological Supervision Centre of the Department of Execution of Sentences (Центр Госсанэпиднадзора при Управлении исполнения наказаний, "the supervision centre"), the Government stressed that the light level in the cells (in particular in cell No. 12) had been above the required minimum. In 2003 the metal shutters were removed from the windows. There was natural and combined extract-and-input ventilation. According to the report on measurement of the microclimate factors carried out by the supervision centre on 19 June 2002, the average air temperature in the cells during the relevant period was between + 22 °C and + 25 °C. The humidity level was in conformity with the relevant requirements.

22. According to a certificate issued by the remand prison on 23 December 2005, there were no interruptions in water supply throughout the applicant's detention, except for cases of routine repairs. In those situations the cells were provided with water from special reservoirs.

23. In a record produced on 23 December 2005 the head of the remand prison attested that there had been no insects or rodents in the applicant's cells. Another certificate issued by him on the same date specified that rat extermination in the remand prison common spaces had been carried out monthly. In addition, it was possible to exterminate rats in the cells on the inmates' request but the applicant had failed to make any such requests.

24. A record produced on 23 December 2005 by the remand prison further indicated that the applicant had addressed the medical unit with complaints concerning viral infections, gastritis, headache, dystonia, dyspepsia and contact dermatitis. On each occasion the applicant had been provided with the necessary medication. The contact dermatitis was an allergic reaction to an unspecified detergent.

C. Proceedings for compensation
25. According to the applicable domestic rules, the applicant was to make his claims for pecuniary and non-pecuniary damages separately in two different courts.

1. Proceedings for pecuniary damages
before the Regional Court
26. In October 2002 the applicant requested the Regional Court to compensate him for pecuniary damage in connection with the criminal prosecution. In particular, he claimed lost earnings and legal costs.

27. On 7 February 2003 the Regional Court partly granted the applicant's claims and awarded him 442,962.41 roubles (RUB, approximately 12,900 euros (EUR)) in lost earnings for the period of his prosecution from May 1995 to July 2002 and three subsequent months. The amount was to be paid by the Ministry of Finance. The court established that the applicant's wife had borne all the legal costs in connection with the criminal proceedings against him and dismissed the applicant's claims in that respect. It advised the applicant that it was open to his wife to apply to the courts of ordinary jurisdiction to recover legal costs. By the same decision the court dismissed the rest of the applicant's claims as unfounded.

28. On 6 May 2003 the Supreme Court upheld this decision on appeal.

29. According to the applicant, the decision of 7 February 2003, as upheld on 6 May 2003, was enforced shortly after it had become final.

2. Proceedings for non-pecuniary damages
before the Zarechenskiy District Court
30. In July 2003 the applicant lodged with the Zarechenskiy District Court of Tula ("the District Court") a civil action for non-pecuniary damages in connection with his unlawful prosecution and detention. He complained that he had been unlawfully held in detention without a court decision on the merits of the charges against him for 2,610 days. Moreover, he alleged that the courts had failed to examine his complaints about unlawfulness of his detention and the fact that his case had been on several occasions remitted for an additional investigation.

31. The applicant further complained that the conditions of his detention had been appalling. He described in detail the measurements of the cells in which he had been detained and claimed that they had been overcrowded, that he had been afforded less than 1.1 sq. m. of personal space and had had to take turns to sleep. He further described in detail other conditions of his detention which he considered degrading and humiliating. The applicant stressed that the Court had found a violation of Article 3 on account of inhuman and degrading conditions of detention in the Kalashnikov case. He submitted that the appalling conditions of pre-trial detention in that case had not been an isolated situation and referred to the Government's admissions that "...for economic reasons, conditions of detention in Russia were very unsatisfactory and fell below the requirements set for penitentiary establishments in other member States of the Council of Europe".

32. The applicant also submitted that his unlawful prosecution and that he had been charged with particularly serious crimes had caused him mental and emotional suffering. The applicant finally noted that his suffering had been aggravated by the fact that it had been impossible for him to communicate with his family and relatives and participate in the upbringing of his children. He claimed RUB 45,521,416 (approximately EUR 1,321,760).

33. By a judgment of 13 August 2004 the District Court examined and allowed the applicant's claims, ordering the treasury to pay the applicant RUB 783,000 (approximately EUR 22,735).

34. On 10 August 2004 the Civil Chamber of the Tula Regional Court (Судебная коллегия по гражданским делам Тульского областного суда) quashed the judgment on the parties' appeals and remitted the case to the first-instance court.

35. On 19 December 2005 the District Court again examined and allowed the applicant's claims. The introductory


John Doe

March 27, 2018 at 8:00 am Reply

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John Doe

March 27, 2018 at 8:00 am Reply

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John Doe

March 27, 2018 at 8:00 am Reply

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