On 18 October 2011 the ECHR delivered four judgments in the cases of Shuvalov v. Russia, Buldashev v. Russia, Cherkasov v. Russia and G.O. v. Russia.[1] In all four cases the ECHR found that Russia had violated, inter alia, Article 3 of the Convention due to either the condition of the applicants’ detention, their ill-treatment in custody, or both, and ordered the Russian Government to pay compensation to the applicants as restitution for non-pecuniary damages.
Overcrowded cells in police custody
Applicants Buldashev and G.O. (who decided not to disclose his name) were arrested, charged, and later convicted of serious crimes.[2] Pending investigation and trial they were detained in remand prisons in Russia. Both applicants complained, inter alia, that the conditions of their detention in the remand prisons were inhumane and degrading. The ECHR upheld their claims due to the following reasons:
1. The ECHR confirmed once again that guarantees of Article 3 of the Convention are provided to everyone, “irrespective of the circumstances or the victim’s behavior”. The Court also noted that Article 3 requires the State to ensure “that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention.”
2. In both cases the applicants were afforded no more than 1.5 to 3 sq.m of personal space, while according to the Russian statutory requirements each inmate shall be provided with no less than 4 sq. m. In this respect the Court reiterated, that such lack of personal space was “so extreme as to justify in itself a finding of a violation of Article 3 of the Convention.” The Court supported this finding by its well-established case law with regard to Russia.[3]
3. Moreover, the applicants were confined to their overcrowded cells “day and night,” apart from an hour’s outdoor daily exercise.
4. In the case of G.O. the Court also noted that “the fact that for approximately three years and one month 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.”
Ill-treatment by the law enforcement officers
Applicant Buldashev also complained of ill-treatment by law enforcement officers while in custody. The same claims were brought before the ECHR by Shuvalov and Cherkasov. Shuvalov was arrested and later charged with and convicted of drug dealing. He was detained in custody pending investigation and trial. Cherkasov was taken for a drunkard by police officers and was brought to a sobering-up cell where he spent approximately one day. All three applicants alleged that they had been beaten by law enforcement officers while in custody and that the domestic authorities had failed to investigate the matter properly. The ECHR sustained their claims providing the following reasoning:
1. The Court reiterated two principles of its case law related to Article 3:
- Strong presumptions of fact arise in respect of injuries occurring during detention in custody, and the burden of proof rests on the Government to provide “a satisfactory and convincing explanation” of how such injuries were caused; and
- Any physical force used towards a person detained in custody “which has not been made strictly necessary by his own conduct diminishes human dignity” and, in itself, violates Article 3 of the Convention.
2. In all three cases the applicants provided the Court with evidence of their ill-treatment, such as witness statements and medical reports drawn-up shortly after the alleged beatings. And though the cause and origin of bodily injuries in these cases was a disputable matter and was not confirmed by relevant medical reports, the evidence presented by the applicants created a strong presumption of fact that they were caused by law enforcement officers while in custody.
3. At the same time, in the Court’s opinion, the Russian Government failed to provide satisfactory, convincing, and undisputable proof as to the origin of the applicants’ injuries. For this reason the ECHR accepted the applicants’ version of the events.
4. According to the ECHR’s case-law Article 3 of the Convention also requires an effective official investigation where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3. In the cases of Shuvalov and Cherkasov, the Court found significant deficiencies in the investigations as listed below.
Shuvalov case:
- the applicant’s cellmates were interrogated by the alleged perpetrator himself; and
- the investigating authorities did not make any attempts to establish the cause of the applicant’s injuries or the time when they could have been inflicted.
Cherkasov case:
- the prosecutor did not launch an investigation promptly after being notified of the alleged ill-treatment and having seen the applicant in person;
- the investigating authorities did not collect evidence from key witnesses;
- the investigators failed to order medical examinations of the alleged perpetrators with a view to identifying any marks on their bodies confirming possible involvement in a recent fight with the applicant; and
- no effort was made to clarify the inconsistencies between the statements of various witnesses.
In the case of Buldashev the Court did not comment on the investigation into alleged beatings, since the Russian Government failed to provide any documents or information on the scope or the progress of the investigation, as well as to explain why the investigation has not been completed yet. However, such failure to provide the necessary information, explanations and documents by the Russian Government incited the Court to find that the authorities did not carry out an effective investigation into the applicant’s allegations of ill-treatment.
What has been done so far by the Russian Government to solve the mentioned problems?
According to the report of the Parliamentary Assembly dated 24 December 2010, unacceptable conditions of detention in pretrial detention centers, ill-treatment in police custody and the lack of effective investigation in this respect are among systemic problems in Russia, which seriously undermine the rule of law.
The first case that revealed the systemic problem related to overcrowding of cells and their other features (lack of private toilets, ventilation problems, lack of access to natural light and basic sanitation) was Kalashnikov v. Russia. The Court delivered its judgment in this case on 15 July 2002. Since then Russia has renovated and built new detention centers, as a result of which the average personal space for detainees rose to 4.85 sq.m. [Details of progress of the measures taken by Russia with respect to this problem can be found in Interim Resolution CM/ResDH(2010)35].
However, neither the Committee of Ministers nor the Parliamentary Assembly found the measures adopted by Russia so far to be effective. Thus, the Committee of Ministers in its latest Interim Resolution noted, that:
“There are still remand prisons where the number of remand prisoners exceeds the design capacity of the facilities, and the requirement of Russian legislation concerning personal space is not complied with.”
“In any event the creation of new places of detention cannot in itself provide a lasting solution to the problem of prison overcrowding, and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners” such as “changes to the legal framework, practices and attitudes.”
The Parliamentary Assembly is of the opinion that “there has been no meaningful progress” in alleviating the problem of overcrowding in Russian cells. It also added that:
“Merely building more remand centers does not solve the root problem: the problem lies in the unnecessary sentencing of detention on remand which results in overcrowding. This systemic issue is caused by, inter alia, non-compliance with time limits set by domestic law, failure to address specific circumstances of cases, failure to use alternative preventative measures and the failure to respect judicial review to challenge the lawfulness of detention on remand. In spite of progress claimed by the Russian authorities, there was a minimal decrease in detainees between January 2007 (144 550) and January 2010 (124 611) and, in 2009, 187 793 applications for detention on remand were granted out of 208 416. Conditions cannot improve with such overcrowding and there appears to be no end in sight to this situation.”
The problem of the ill-treatment in police custody by law enforcement officers was first revealed in Mikheyev case, decided by the Court in January 2006. Since the delivery of this judgment by the Court the Russian authorities have adopted a number of reforms of the Ministry of the Internal Affairs. Thus, in March 2011 a new Law “On Police” has been adopted. [For more detailed information on the general measures adopted by Russia in this respect see this link]. However, the Parliamentary Assembly was not persuaded that these reforms are effective enough to solve the problem of ill-treatment in police custody. In its report it noted, inter alia, the following:
“But it remains unclear to what extent this reform will constitute a response to the findings of the Court. It would appear at first sight that the reform does not seem to address important issues, such as safeguards in police custody (notification of custody to a third party, right to a lawyer, right to a medical doctor). Also, the CPT[4]reports, which might provide useful guidance for the Russian authorities on all these issues, remain confidential.”
Based on the above assessments of the Parliamentary Assembly and the Committee of Ministers with respect to the measures adopted by Russia to solve the systemic problems at issue, we may expect more cases against Russia concerning poor conditions in remand prisons and ill-treatment in police custody, as well as more judgments of the ECHR in favor of the applicants.
[1] Full text of the judgments can be found at the HUDOC data base on the official site of the ECHR.
[2] Buldashev was convicted of murder, fraud and misappropriation of funds. And G.O. was convicted of inflicting serious bodily harm causing the death of the victim.
[3] Andrey Frolov v. Russia, no. 205/02, §§ 50-51, 29 March 2007; Lind v. Russia, no. 25664/05, §§ 61-63, 6 December 2007; Lyubimenko v. Russia, no. 6270/06, §§ 58-59, 19 March 2009; and, more recently, Veliyev v. Russia, no. 24202/05, §§ 129-130, 24 June 2010.
[4] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
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