THIRD SECTION
\nCASE OF ISAYKIN v. RUSSIA
\n(Application no. 53048\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Isaykin v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of: Having deliberated in private on 6 February 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. 53048\/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 Russiannational, Mr Igor ViktorovichIsaykin (\u201cthe applicant\u201d), on 6 July 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr E. Markov, a lawyer practising in Budapest. The Russian Government (\u201cthe Government\u201d) were represented by Mr G. Matyushkin, 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 20 November 2012 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1972 and is detained in Belovo, Kemerovo Region.<\/p>\n A.\u00a0\u00a0Conditions of detention<\/strong><\/p>\n 1.\u00a0\u00a0The applicant\u2019s account<\/em><\/p>\n 5.\u00a0\u00a0Following the applicant\u2019s arrest on suspicion of drug trafficking, on 14 November 2008 he was placed in temporary detention facility no. 70\/1 in Tomsk. He remained in that facility until 20 April 2010. He was detained in cells nos. 91, 1, 7, 55, 4, 56, 51. Each cell measured approximately twenty metres and housed, for the major part of his stay, between 10 and 14\u00a0inmates. In the majority of the cells the toilet was merely a hole in the floor. A lavatory pan was installed in three cells, in the corner, and was separated from the living area by a 1.5-metre fence. The applicant was afforded an hour-long walk daily in the recreation yard.<\/p>\n 2.\u00a0\u00a0The Government\u2019s account<\/em><\/p>\n 6.\u00a0\u00a0According to the Government the applicant was provided with an individual sleeping place, except for the detention period between 18\u00a0November and 2 December 2008. There was artificial lighting, natural and artificial ventilation in the cells; the cells were heated.<\/p>\n B.\u00a0\u00a0Equality of arms at the appeal hearing<\/strong><\/p>\n 7.\u00a0\u00a0On 30 December 2009 the Leninskiy District Court of Tomsk found the applicant guilty of attempted drug trafficking and sentenced him to nine years and six months\u2019 imprisonment.<\/p>\n 8.\u00a0\u00a0The applicant\u2019s lawyer lodged an appeal and asked to ensure the applicant\u2019s presence at the appeal hearing.<\/p>\n 9.\u00a0\u00a0On 17 May 2010 the Tomsk Regional Court upheld the conviction, having heard a prosecutor and the applicant\u2019s lawyer. The applicant was not transported to the hearing.<\/p>\n 10.\u00a0\u00a0On 13 February 2013 the Presidium of the Tomsk Regional Court quashed the decision of 17 May 2010 and remitted the case for a fresh examination.<\/p>\n 11.\u00a0\u00a0On 25 March 2013 the Tomsk Regional Court upheld the applicant\u2019s conviction on appeal. The applicant and his lawyer were present at the hearing.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 12.\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).<\/p>\n 13.\u00a0\u00a0If a convicted person wishes to take part in appeal hearing, he or she must indicate this request in his or her statement of appeal (Code of Criminal Procedure of the Russian Federation, Article 375 \u00a7 2).<\/p>\n 14.\u00a0\u00a0The failure of a party, who has been duly notified of the date, time and place of the appeal hearing, to attend the hearing should not preclude the court from proceeding with the examination of the case (Code of Criminal Procedure, Article 376 \u00a7 4).<\/p>\n 15.\u00a0\u00a0If the court is unable to proceed owing to the absence of a party summoned to court, it must adjourn the hearing (Code of Criminal Procedure, Article 253 \u00a7 1).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 16.\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 17.\u00a0\u00a0The Government contested that argument.<\/p>\n 18.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 19.\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 20.\u00a0\u00a0In 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 the 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 Kud\u0142a v. Poland [GC], no. 30210\/96, \u00a7\u00a7 92-94, ECHR 2000\u2011XI, and Popov v. Russia, no. 26853\/04, \u00a7 208, 13 July 2006).<\/p>\n 21.\u00a0\u00a0When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907\/98, \u00a7 46, ECHR\u00a02001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812\/01, 8 November 2005).<\/p>\n 22.\u00a0\u00a0The Court notes that in the present case the applicant spent 1 year, 5\u00a0months, and 5 days in overcrowded cells measuring about 20 square metres. He was afforded 1.4 \u2013 2 square metres of personal space.<\/p>\n 23.\u00a0\u00a0Moreover,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 (see Ananyev and Others, cited above, \u00a7 157, with further references).<\/p>\n 24.\u00a0\u00a0The applicant was allowed a one-hour period of outdoor exercise daily. The Court has frequently observed that a short duration of outdoor exercise limited to one hour a day was a factor that further exacerbated the situation of the applicants, who were confined to his cell for the rest of the time without any kind of freedom of movement (seeAnanyev and Others, cited above, \u00a7 151, with further references).<\/p>\n 25.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that 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 II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 26.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention that the authorities had failed to ensure his presence at the appeal hearing, while the prosecutor had attended and had made oral submissions. The relevant parts of Article 6 of the Convention provide as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…<\/p>\n …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require…\u201d<\/p>\n 27.\u00a0\u00a0The Government submitted that the applicant had lost his victim status.<\/p>\n 28.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n 29.\u00a0\u00a0The Court reiterates that in situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of \u201cvictim\u201d, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, 25 June 1996, \u00a7 36, Reports of Judgments and Decisions 1996 III).<\/p>\n 30.\u00a0\u00a0The Court further reiterates that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening (see Sakhnovskiy v. Russia [GC], no. 21272\/03, \u00a7 83, 2 November 2010, and Timoshin v. Russia (dec.), no. 17279\/05, 17 May 2011).<\/p>\n 31.\u00a0\u00a0In the present case the supervisory-review court quashed the appeal judgment on the ground that the lower court had failed to secure the presence of the applicant at the appeal hearing. Thus they explicitly acknowledged the infringement of the applicant\u2019s right to defence in person in the appeal proceedings and ordered a fresh appeal hearing.<\/p>\n 32.\u00a0\u00a0The applicant and his lawyer were present at the new appeal hearing and were able to make oral submissions. There is no indication that these new proceedings had any defects. Therefore the measures taken by the authorities provided adequate redress to the applicant in respect of the violation of his right to take part in the appeal hearing.<\/p>\n 33.\u00a0\u00a0In these circumstances, the Court concludes that the defects in the original appeal proceedings were remedied by the subsequent procedure before the appellate court. The fact that the applicant waspresent at the new hearing constituted adequate redress for the violation of his right to fair trial.<\/p>\n 34.\u00a0\u00a0Therefore, having regard to the content of the supervisory-review court\u2019s judgment and the subsequent re-examination of the applicant\u2019s case during which he was afforded an effective opportunity to be present, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities\u2019failure to summon the applicant to the hearing (see Timoshin, cited above; Lozhkin v. Russia (dec.), no. 16384\/08, \u00a7\u00a7\u00a014\u201122, 22 October 2013; and Khismatullin v. Russia, no. 33469\/06, \u00a7\u00a7\u00a061-67, 11 December 2014).<\/p>\n 35.\u00a0\u00a0It follows that the applicant can no longer claim to be \u201cvictim\u201d of the alleged violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this part of the application must be rejected pursuant to Articles 34 and 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 36.\u00a0\u00a0The applicant also submitted other complaints, in particular complaints concerning conditions of detention in a correctional colony, courts\u2019 findings of fact and law and reclassification of charges.<\/p>\n 37.\u00a0\u00a0However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 38.\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 39.\u00a0\u00a0The applicant claimed 15,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 40.\u00a0\u00a0The Government stated that the sum claimed by the applicant was excessive.<\/p>\n 41.\u00a0\u00a0The Court awards the applicant EUR 6,250 in respect of non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 42.\u00a0\u00a0The applicant also claimed EUR 2,250 for the costs and expenses incurred before the Court.<\/p>\n 43.\u00a0\u00a0The Government stated that the applicant had failed to provide supporting documents confirming his claims.<\/p>\n 44.\u00a0\u00a0The Court notes that the applicant failed to submit any documents in support of his claim. Thus his claim is unsubstantiated.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 45.\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\u00a0Declares the complaint concerning the applicant\u2019s conditions of detention under Article 3 admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 3 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months EUR 6,250 (six 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 State at 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 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 27 February 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 Luis L\u00f3pez Guerra
\nLuis L\u00f3pez Guerra, President,
\nDmitry Dedov,
\nJolien Schukking, 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