I correctly predicted that there was a violation of human rights in LIU v. RUSSIA.

Judgment

THIRD SECTION

CASE OF LIU v. RUSSIA

(Application no. 13311/10)

JUDGMENT

STRASBOURG

10 April 2018

This judgment is final but it may be subject to editorial revision. In the case of Liu v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 20 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The 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 (“the Convention”) by a Chinese national, Mr Jingcai Liu (“the applicant”), on 6 March 2010. 2. The applicant, who had been granted legal aid, was represented by Ms Y.V. Yefremova, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially 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. 3. On 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 inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1968 and lives in Sovetskaya Gavan, Khabarovsk Region. A. Conditions of detention
1. The applicant’s account
5. On 22 October 2009 the applicant was arrested and brought to the Khabarovsk Administrative Detention Centre where he stayed until 27 November 2009. 6. Since 22 October 2009 he had been detained with more than 12 inmates 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 square meters which he had shared with another inmate. 7. The detention centre had no shower facilities or a place for outdoor walks. The applicant’s 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. 2. The Government’s account
8. The 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 inmates. 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. B. Prohibition on family visits
9. On 26 October 2009 the applicant’s wife, Mrs Liu, sought to visit the applicant but was refused. 10. On 6 and 10 November 2009 the applicant’s wife filed complaints with the Khabarovsk Prosecutor’s Office stating that she had not been allowed to see the applicant. 11. In 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. 12. On 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 (“the Rules”) did not make provision for family visits, and that the applicant’s right to family life had not been breached as he had met his wife during court hearings. 13. On 18 May 2011 the Khabarovsk Regional Court upheld the above decision on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE
14. Domestic provisions relating to conditions of detention are described in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25-54, 10 January 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). 15. The 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). THE LAW
I. THE APPLICANT’S LOCUS STANDI
16. The Government stated in their observations that the applicant had failed to provide a properly executed power of attorney. 17. The applicant stated that he submitted two powers of attorney which had been properly signed by him. 18. In 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, § 14, 15 May 2012; K.M. and Others v. Russia (dec.), no. 46086/07, 29 April 2010; Çetin v. Turkey (dec.), no. 10449/08, 13 September 2011). 19. In 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. 20. Therefore, the Court dismisses the Russian Government’s objections ratione personae and holds that the applicant has standing to continue the present proceedings. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21. The applicant complained about poor conditions of detention under Articles 3, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
22. The Government submitted that that the conditions of the applicant’s detention had been satisfactory as his cell had not been overcrowded. 23. The applicant maintained his complaint. A. Admissibility
24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
25. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‐94, ECHR 2000‐XI, and Ananyev and Others, cited above, §§ 139‐65, 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 “degrading” 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, Karalevičius v. Lithuania, no. 53254/99, §§ 36-40, 7 April 2005). 26. The 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. 27. The 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, § 157, with further references). 28. Moreover, it seems that the applicant had access to showers once every seven days. The Court has frequently noted that the way the showering was organised in Russian detention centres has been manifestly inadequate for maintaining proper bodily hygiene (see Ananyev v. Russia, cited above, § 158, with further references). 29. The Court considers that in the instant case the applicant’s conditions of detention were inadequate. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
30. The applicant complained of a violation of his right to family visits. He relied on Article 8 of the Convention which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.”
31. The Government submitted that the applicant’s 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. 32. The 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. A. Admissibility
33. The Court points out that the rule of exhaustion of domestic remedies referred to in Article 35 § 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 (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‐IV). 34. The 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. 33592/96, § 47, 22 May 2001, and İçyer v. Turkey (dec.), no. 18888/02, § 72, 12 January 2006). 35. At 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, § 89, Series A no. 13, and Lehtinen v. Finland (dec.), no. 39076/97, ECHR 1999‐VII). 36. Turning to the present case, the Court notes that the applicant’s wife complained about refusal of a family visit before the Khabarovsk Prosecutor’s 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 applicant had raised his complaint before the domestic authorities before lodging his application with the Court and before communication of the case. Therefore, the Court considers that the applicant’s complaint was not premature in the circumstances of the case. 37. The Court is satisfied that this complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
38. The 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’s 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. 2), no. 25498/94, §§ 59-74, ECHR 2000 X; Lavents v. Latvia, no. 58442/00, §§ 139-43, 28 November 2002; Estrikh v. Latvia, no. 73819/01, §§ 165-74, 18 January 2007; Vlasov v. Russia, no. 78146/01, §§ 120-27, 12 June 2008; Moiseyev v. Russia, no. 62936/00, §§ 243-59, 9 October 2008; Trosin v. Ukraine, no. 39758/05, §§ 32-47, 23 February 2012; Khoroshenko v. Russia [GC], no. 41418/04, §§ 85-149, 30 June 2015). 39. It 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’s right to respect for his family life (see Messina, cited above, § 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. 40. The Court notes from its well established case-law that the wording “in accordance with the law” 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, §§ 66-68, Series A no. 82, and Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V). 41. The Court notes that in the present case the authorities prohibited the applicant’s wife to visit him on the ground that the Rules did not allow any family visits. 42. The Court further notes that the Rules fell short of the requirement of foreseeability because they did 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. 35207/03, § 100, 13 September 2005, Calogero Diana v. Italy, 15 November 1996, §§ 32-33, Reports of Judgments and Decisions 1996‐V). In view of the above, the Court considers that the refusal of family visits cannot be regarded as having been “prescribed by law”. In the light of this finding, it is not necessary to assess whether the other conditions set out in paragraph 2 of Article 8 have been complied with. 43. There has therefore been a violation of Article 8 on account of the restriction on the applicant’s right to family visits. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. 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
45. The applicant claimed 200,000 euros (EUR) in respect of non‐pecuniary damage. 46. The Government stated that the amount of compensation should be calculated in accordance with the Court’s case-law. 47. The Court awards the applicant EUR 3,250 in respect of non‐pecuniary damage. B. Costs and expenses
48. The applicant also claimed EUR 4,000 for the legal costs and expenses incurred before the Court. 49. The Government stated that the amount to be awarded should be calculated in accordance with the Court’s case-law. 50. According to the Court’s 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. 34393/03, § 66, 30 July 2009). C. Default interest
51. The 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months EUR 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 State at the rate applicable at the date of settlement;
(b) that 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident