THIRD SECTION
\nCASE OF LIU v. RUSSIA
\n(Application no. 13311\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n10 April 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Liu v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Branko Lubarda, President, Having deliberated in private on 20 March 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 13311\/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Chinesenational, Mr Jingcai Liu (\u201cthe applicant\u201d), on 6 March 2010.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Ms\u00a0Y.V. Yefremova, a lawyer practising in Moscow. The Russian Government (\u201cthe Government\u201d) were initially represented by Mr\u00a0G.\u00a0Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0On 6 July 2015 the complaints concerning conditions of detention and prohibition of family visits were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a0\u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1968 and lives in Sovetskaya Gavan, Khabarovsk Region.<\/p>\n A.\u00a0\u00a0Conditions of detention<\/strong><\/p>\n 1.\u00a0\u00a0The applicant\u2019s account<\/em><\/p>\n 5.\u00a0\u00a0On 22 October 2009 the applicant was arrested and brought to the Khabarovsk Administrative Detention Centre where he stayed until 27\u00a0November 2009.<\/p>\n 6.\u00a0\u00a0Since 22 October 2009 he had been detained with more than 12\u00a0inmates in the cell no. 9 designed for 12 persons and had to take turns to sleep. A month after he had been transferred to another cell with the area of 6\u00a0square meters which he had shared with another inmate.<\/p>\n 7.\u00a0\u00a0The detention centre had no shower facilities or a place for outdoor walks. The applicant\u2019s cell was cold and damp, iron banks were not covered by mattresses. Toilets were not separated from the living area, and the persons using them were in full view of others. Food supply was inadequate, the applicant was served meals only once a day and had no drinking water from within the cell.<\/p>\n 2.\u00a0\u00a0The Government\u2019s account<\/em><\/p>\n 8.\u00a0\u00a0The Government submitted that the Khabarovsk Administrative Detention Centre comprised two cells: no. 5 with the area of 14.6 square meters for 3 inmates and no. 6 with the area of 18 square meters for 4\u00a0inmates. There was no overcrowding; the toilet had been separate by a shoulder length fence. The detainees may take a shower once a week. The temperature was 23oC, there were kettles with boiled water in the cells.<\/p>\n B.\u00a0\u00a0Prohibition on family visits<\/strong><\/p>\n 9.\u00a0\u00a0On 26 October 2009 the applicant\u2019s wife, Mrs Liu, sought to visit the applicant but was refused.<\/p>\n 10.\u00a0\u00a0On 6 and 10 November 2009 the applicant\u2019s wife filed complaints with the Khabarovsk Prosecutor\u2019s Office stating that she had not been allowed to see the applicant.<\/p>\n 11.\u00a0\u00a0In August 2010 the applicant brought a civil claim for compensation in respect of non-pecuniary damage, stating that the conditions of his detention had been inhuman and degrading, and that the prohibition on family visits was unlawful.<\/p>\n 12.\u00a0\u00a0On 9 February 2011 the Industrialnyy District Court of Khabarovsk dismissed his claim. Relying on the statements of a representative of the detention centre, the court held that the Internal Rules of the Administrative Detention Centres approved by the Decree of the Ministry of Defence of Russia of 6 June 2000 no. 605 dsp(\u201cthe Rules\u201d) did not make provision for family visits, and that the applicant\u2019s right to family life had not been breached as he had met his wife during court hearings.<\/p>\n 13.\u00a0\u00a0On 18 May 2011 the Khabarovsk Regional Court upheld the above decision on appeal.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 14.\u00a0\u00a0Domestic provisions relating to conditions of detention are described in Ananyev and Others v. Russia (nos. 42525\/07 and 60800\/08, \u00a7\u00a7 25-54, 10\u00a0January 2012). Moreover, according to the Rules every detainee shall be provided with not less than four square meters of personal space; the cells shall be equipped in accordance with the standards applied to temporary detention centres (points 18 and 19).<\/p>\n 15.\u00a0\u00a0The Rules provide that the detainees may talk on the phone with their next-of-kin for up to three minutes only once during all period of their detention, except for intercity calls which are not allowed (point 25).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE APPLICANT\u2019S LOCUS STANDI<\/p>\n 16.\u00a0\u00a0The Government stated in their observations that the applicant had failed to provide a properly executed power of attorney.<\/p>\n 17.\u00a0\u00a0The applicantstated that he submitted two powers of attorney which had been properly signed by him.<\/p>\n 18.\u00a0\u00a0In a number of cases in which the applicant had not been in contact with the Court directly, the Court has held that it considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act (see Kaur v. the Netherlands (dec.), no. 35864\/11, \u00a7 14, 15 May 2012; K.M. and Others v.\u00a0Russia (dec.), no. 46086\/07, 29 April 2010; \u00c7etin v. Turkey (dec.), no.\u00a010449\/08, 13 September 2011).<\/p>\n 19.\u00a0\u00a0In the present case the file contains two powers of attorney. The applicant appointed his wife to represent him in all judicial proceedings relating to his case in his first power of attorney executed on 27 October 2009. In 2015 the applicant submitted another power of attorney executed on 14 August 2015 by which he authorized Ms Yefremova to act before the Court. Consequently, it considers that the applicant has duly authorized his representatives to lodge his application and represent him before the Court.<\/p>\n 20.\u00a0\u00a0Therefore, the Court dismisses the Russian Government\u2019s objections ratione personae and holds that the applicant has standing to continue the present proceedings.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 21.\u00a0\u00a0The applicant complained about poor conditions of detention under Articles 3, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 22.\u00a0\u00a0The Government submitted that that the conditions of the applicant\u2019s detention had been satisfactory as his cell had not been overcrowded.<\/p>\n 23.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 24.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 25.\u00a0\u00a0The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Kud\u0142a v.\u00a0Poland [GC], no. 30210\/96, \u00a7\u00a7 90\u201194, ECHR 2000\u2011XI, and Ananyev and Others, cited above,\u00a7\u00a7 139\u201165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were \u201cdegrading\u201d from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevi\u010dius v.\u00a0Lithuania, no. 53254\/99, \u00a7\u00a7 36-40, 7 April 2005).<\/p>\n 26.\u00a0\u00a0The Court notes that in the present case, in the beginning of his detention the applicant was detained in cell no. 9 designated for 12 inmates and he had to take turns to sleep. Afterwards he was transferred to another cell where he was afforded only 3 square meters of personal space.It seems that the applicant was deprived of adequate outdoor exercise.<\/p>\n 27.\u00a0\u00a0The Government acknowledged that the toilet had been separated from the rest of the cell only by a low fence. The Court has noted in many cases that such close proximity of a lavatory pan and exposure was not only objectionable from a hygiene perspective but also deprived a detainee using the toilet of any privacy because he remained at all times in full view of other inmates (see Ananyev and Others, cited above, \u00a7 157, with further references).<\/p>\n 28.\u00a0\u00a0Moreover, it seems that the applicant had access to showers once every seven days. The Court has frequently noted that the way the showering was organisedin Russian detention centres has been manifestly inadequate for maintaining proper bodily hygiene (see Ananyev v. Russia, cited above, \u00a7 158, with further references).<\/p>\n 29.\u00a0\u00a0The Court considers that in the instant case the applicant\u2019s conditions of detention were inadequate. There has accordingly been a violation of Article 3 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 30.\u00a0\u00a0The applicant complained of a violation of his right to family visits.He relied on Article 8 of the Convention which provides:<\/p>\n \u201c1. Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n 31.\u00a0\u00a0The Government submitted that the applicant\u2019s complaint had been premature as it had been submitted before he had exhausted the relevant domestic remedies. They also noted that the applicant had had the possibility to meet his wife at the court hearings as she had acted as his representative.<\/p>\n 32.\u00a0\u00a0The applicant stated that his complaint was not premature as he had filed complaints with competent authorities before submitting his application to the Court and that meeting his wife at the court hearings may not be considered as a family visit.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 33.\u00a0\u00a0The Court points out that the rule of exhaustion of domestic remedies referred to in Article 35 \u00a7 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system (seeAkdivar and Others v. Turkey, 16 September 1996, \u00a7 65, Reports of Judgments and Decisions 1996\u2011IV).<\/p>\n 34.\u00a0\u00a0The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no.\u00a033592\/96, \u00a7\u00a047, 22 May 2001, and \u0130\u00e7yer v. Turkey (dec.), no. 18888\/02, \u00a7\u00a072, 12\u00a0January 2006).<\/p>\n 35.\u00a0\u00a0At the same time, the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria, 16 July 1971, \u00a7\u00a089, Series A no. 13, and Lehtinen v. Finland (dec.), no. 39076\/97, ECHR 1999\u2011VII).<\/p>\n 36.\u00a0\u00a0Turning to the present case, the Court notes that the applicant\u2019s wife complained about refusal of a family visit before the Khabarovsk Prosecutor\u2019s Office for the first time in November 2009. In August 2010 the applicant claimed before the domestic courts to award him non-pecuniary damage for prohibition of family visits. The application had been lodged with the Court on 6 March 2010 and communicated on 6 July 2015. The Court is satisfied that the applicanthad raised his complaint before the domestic authorities before lodging his application with the Court and before communication of the case. Therefore, the Court considers thatthe applicant\u2019s complaint was not premature in the circumstances of the case.<\/p>\n 37.\u00a0\u00a0The Court is satisfied that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 38.\u00a0\u00a0The Court has established extensive case-law concerning complaints relating to family visits. In particular, it has repeatedly held that detention entails inherent limitations on private and family life. However, it is an essential part of a prisoner\u2019s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, among many other authorities, Messina v. Italy(no.\u00a02), no.\u00a025498\/94, \u00a7\u00a7 59-74, ECHR 2000 X; Lavents v. Latvia, no.\u00a058442\/00, \u00a7\u00a7\u00a0139-43, 28 November 2002; Estrikh v. Latvia, no.\u00a073819\/01, \u00a7\u00a7 165-74, 18 January 2007; Vlasov v. Russia, no. 78146\/01, \u00a7\u00a7 120-27, 12 June 2008; Moiseyev v. Russia, no. 62936\/00, \u00a7\u00a7 243-59, 9\u00a0October 2008; Trosin v.\u00a0Ukraine, no. 39758\/05, \u00a7\u00a7 32-47, 23 February 2012; Khoroshenko v.\u00a0Russia [GC], no. 41418\/04, \u00a7\u00a7 85-149, 30 June 2015).<\/p>\n 39.\u00a0\u00a0It was submitted by the applicant, and not contested by the Government, that the applicant had not been allowed any family visits during his detention. The Court finds that such a prohibition amounted to an interference with the applicant\u2019s right to respect for his family life (see Messina, cited above, \u00a7 62). It will now proceed to examine whether this prohibition was justified in the present case. It will first consider whether the interference in question was in accordance with the law.<\/p>\n 40.\u00a0\u00a0The Court notes from its well established case-law that the wording \u201cin accordance with the law\u201d requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law. The law must thus be adequately accessible and foreseeable. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, \u00a7\u00a7 66-68, Series A no. 82, andRotaru v. Romania [GC], no. 28341\/95, \u00a7 55, ECHR 2000-V).<\/p>\n 41.\u00a0\u00a0The Court notes that in the present case the authorities prohibited the applicant\u2019s wife to visit him on the ground that the Rules did not allow any family visits.<\/p>\n 42.\u00a0\u00a0The Court further notes that the Rules fell short of the requirement of foreseeability because theydid not contain any clear provisions on family visits or procedure to be followed when allowing or refusing family visits or reasons why a family visit could be refused. It follows that the provisions on which the refusal of family visits had been based, did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that the applicant did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (compare Ostrovar v. Moldova, no.\u00a035207\/03, \u00a7\u00a0100, 13\u00a0September 2005, Calogero Diana v. Italy, 15\u00a0November 1996, \u00a7\u00a7\u00a032-33, Reports of Judgments and Decisions 1996\u2011V). In view of the above, the Court considers that the refusal of family visits cannot be regarded as having been \u201cprescribed by law\u201d. In the light of this finding, it is not necessary to assess whether the other conditions set out in paragraph\u00a02 of Article 8 have been complied with.<\/p>\n 43.\u00a0\u00a0There has therefore been a violation of Article 8 on account of the restriction on the applicant\u2019s right to family visits.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 44.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 45.\u00a0\u00a0The applicant claimed 200,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 46.\u00a0\u00a0The Government stated that the amount of compensation should be calculated in accordance with the Court\u2019s case-law.<\/p>\n 47.\u00a0\u00a0The Courtawards the applicant EUR 3,250 in respect of non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 48.\u00a0\u00a0The applicant also claimed EUR 4,000 for the legal costs and expenses incurred before the Court.<\/p>\n 49.\u00a0\u00a0The Government stated that the amount to be awarded should be calculated in accordance with the Court\u2019s case-law.<\/p>\n 50.\u00a0\u00a0According to the Court\u2019s 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. Taking into account that the amount of EUR 850 has already been paid to the applicant by way of legal aid, the Court does not consider it necessary to make an award under this head (see Pitalev v. Russia, no.\u00a034393\/03, \u00a7 66, 30 July 2009).<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 51.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 3 of the Convention;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsEUR 3,250 (three thousand two hundred fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 10 April 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Branko Lubarda
\nPere Pastor Vilanova,
\nGeorgios A. Serghides, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n