I correctly predicted that there was a violation of human rights in TOMOV v. RUSSIA.
Information
- Judgment date: 2018-01-09
- Communication date: 2015-01-23
- Application number(s): 18255/10
- Country: RUS
- Relevant ECHR article(s): 3
- Conclusion:
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings
Civil proceedings
Article 6-1 - Reasonable time) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.696727
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Aleksey Gennadyevich Tomov, is a Russian national.
He is represented before the Court by Mr E. Mezak, a lawyer practising in Syktyvkar in the Komi Republic of the Russian Federation.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2004-2009 the applicant had served a custodial sentence in a high-security correctional facility IK-22 in Vorkuta.
In August 2009, the Vorkuta Town Court of the Komi Republic amended his sentence, replacing a high-security institution with a correctional settlement.
Accordingly, the penitentiary authorities decided to transfer the applicant into the KP-52 settlement located in the Vetyu village in the Knyazhpogostskiy district of the Komi Republic.
The nearest city is the city of Yemva which is separated from Vorkuta by a distance of approximately 900 kilometres.
A direct railway line connects Vorkuta with Yemva.
At about 2 p.m. on 19 September 2009 the applicant’s transfer to Yemva began.
The applicant and three other detainees were loaded onto a prison van GAZ-3307.
The van featured three compartments: two compartments measured 3.4 sq.
m and were designed for transporting up to ten persons, and the third compartment was designed for solitary confinement.
The applicant and the other prisoners were placed in one of the large compartments.
On the way to the railway station the van called at the Vorkuta remand prison where more prisoners were seated in the applicant’s compartment up to a total number of ten persons.
All of them carried bulky bags with their personal belongings and food supplies.
In total, the journey to the station took approximately three hours.
No one was allowed to leave the van and the van heating was off.
The prisoner carriage travelled by railway along the following route: (a) between 5 p.m. on 19 September 2009 and 3.30 a.m. on 20 September 2009: from Vorkuta to Pechora, coupled to passenger train 375 Vorkuta-Moscow; (b) between 3.30 and 7.35 a.m.: stop at Pechora; (c) between 7.35 and 11.30 a.m.: from Pechora to Usinsk, coupled to passenger train 616 Pechora-Usinsk; (d) between 11.30 a.m. and 4.10 p.m.: stop at Usinsk; (e) between 4.10 and 8.00 p.m.: from Usinsk to Pechora, coupled to passenger train 615 Usinsk-Pechora; (f) between 8.00 p.m. and 1.55 a.m. on 21 September 2009: stop at Pechora; (g) between 1.55 a.m. and 12.45 a.m.: from Pechora to Yemva, coupled to passenger train 635 Pechora-Syktyvkar.
On the section between Vorkuta and Usinsk the applicant shared a six-place compartment with nine other prisoners.
The compartment measured 3.6 sq.
m and was equipped with six berths, three on the left wall and three on the right wall, plus one additional removable berth that could be fitted between two berths at mid-level.
It was shorter than the normal berths and only measured 1.2 metre in length.
After the stop at Usinsk and until his arrival at the destination the applicant shared a three-place compartment with three other persons.
It measured 2 sq.
m and was fitted with three berths on one wall.
Prisoners were allowed to visit the toilet two or three times a day.
Using the toilet at stops was prohibited.
B.
Relevant domestic law and practice A joint order of the Ministry of Justice and the Ministry of the Interior of 24 May 2006 (no.
199dsp/369dsp), approving the Instruction on professional activities of special departments of the penitentiary system in charge of conveyance (the “Conveyance Instruction”), has not been officially published and its text is not available.
However, it can be understood from various judicial decisions that point 167 of the Conveyance Instruction provided as follows: (1) the normative occupancy rate in a railway carriage must not exceed twelve persons in a large compartment or five persons in a small compartment; (2) if the transfer time is below four hours, it is permissible to place up to sixteen persons in a large compartment or up to six persons in a small compartment; (3) a prison van with the carrying capacity of up to 2 tons may carry up to 13 prisoners, up to 3 tons – up to 21 prisoners, 4 tons – up to 36 prisoners.
By judgment of 13 October 2011, as upheld on appeal on 27 December 2011, the Supreme Court of the Russian Federation rejected a legal challenge to paragraph 1 of point 167 of the Conveyance Instruction (case no.
ГКПИ11-1143).
It found that the normative occupancy rate corresponded to the technical specifications of the carriage and to the sanitary regulations and that there was no indication of torture or inhuman treatment.
On 24 January 2012 the Supreme Court of the Russian Federation granted in part a subsequent legal challenge to paragraphs 2 and 3 of point 167 of the Conveyance Instruction (case no.
ГКПИ11-1774, judgment upheld on appeal on 17 April 2012).
The court found as follows: “It has been established that remand and convicted prisoners are transported by railways in carriages that are a modified version of a standard-issue passenger carriage.
Carriages for prisoners can have either nine compartments (5 large and 4 small), or eight compartments (5 large and 3 small).
A large compartment is fitted with six berths and one removable berth; its design capacity is five sleeping and eight sitting places, with four persons sitting on each of the lower berths.
A small compartment is fitted with three berths designed for two sleeping and four sitting persons.
Since 2004, the TsMV61-4500 carriage has been used for transporting prisoners.
According to its technical specifications, the carriage has eight compartments (5 large and 3 small) and a seating capacity of 85 places (10 places for warders and 75 places for prisoners); it has ventilation and air conditioning, lighting, heating and a toilet; all windows are fitted with bars which do not block the opening of windows for ventilation by pulling the window frame down.
Compartments have no windows but only metal bars and a door with bars, rather than a solid wall, separate compartments from the corridor, forming a single space ...
According to the technical specifications, the large compartment measures 205 by 150.9 cm, the small one 205 by 100 cm; a berth is 205 cm long; the passage between berths is 47 cm wide.
Accommodating six prisoners in a small compartment ... does not exceed the design capacity and is compatible with the international and federal law.
The representative of the Penitentiary Service explained to the court that sixteen prisoners are accommodated in the large compartment in the following manner: five prisoners on each of the lower berths, one prisoner on each of the upper berths, four persons on the middle berths with the removable berth installed between them.
Having regard to the size of the berths and the width of the removable berth (no more than 47 cm), the court considers that placing sixteen prisoners into a large compartment that has five sleeping and eight sitting places must be excessively discomfortable for them and is incompatible with the Standard Minimum Rules for the Treatment of Prisoners.
Accordingly, paragraph 2 of point 167 of the Instruction must be declared invalid in the relevant part.
...
In accordance with the Industry standard PR 78.01.0024-2010 ‘Operative and service vans for transporting suspects and defendants’, adopted on 14 October 2010 (which replaced the standard 78.01.0002-99 of 1 June 1999), prison vans are manufactured on the chassis of trucks, passengers cars, vans or buses; they may only transport seated persons; they are equipped with heating, ventilation, lighting and composting toilets (for more than seven prisoners) (points 4.3, 4.5, 5.4, 5.8, 5.9, 5.10); they feature one or two multi-occupancy cells and solitary-confinement cells that are equipped with benches; a multi-occupancy bench must provide at least 45 cm per person, a single seat should be at least 42 cm wide; the minimum dimensions for a solitary-confinement cell are 50 by 65 cm ...
Thus, the type-approval of a prison van on the GAZ-3307 chassis provides for two multi-occupancy and one single-confinement cells to a total passenger capacity of 25 persons, of which 21 are prisoners.
The type-approval of the KAMAZ-4308 prison van indicates the capacity of 37 persons, of which 6 persons are warders and 31 prisoners.
It follows that the normative seating capacity, as it established in paragraph 3 of point 167 of the Conveyance Instruction, is compatible with the technical specifications of the said vehicles.
The regulation is not in breach of Article 3 of the European Convention ... [because] the transfer of prisoners by a van in compliance with the normative seating capacity set out in paragraph 3 of point 167 of the Instruction is not, in itself, constitutive of torture, cruel or inhuman treatment.” C. Relevant international material The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: Removal of prisoners “45.
(1) When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.
(3) The transport of prisoners shall be carried out at the expense of the administration and equal conditions shall obtain for all of them.” COMPLAINT The applicant complains under Article 3 of the Convention that the conditions of transport in a prison van and in a railway carriage amounted to inhuman and degrading treatment.
Judgment
THIRD SECTIONCASE OF HRUSTIĆ AND OTHERS v. SERBIA
(Application no. 8647/16 and 2 others – see appended list)
JUDGMENT
STRASBOURG
9 January 2018
This judgment is final but it may be subject to editorial revision. In the case of Hrustić and Others v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications (nos. 8647/16, 12666/16 and 20851/16) against the Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Serbian nationals, Ms Hasiba Hrustić (“the first applicant”), Mr Dragoslav Stojanović and Ms Olivera Stojanović (“the second and third applicant”), and Ms Mirjana Ilić (“the fourth applicant”), on 5 and 26 February and 7 April 2016, respectively. 2. The second, third and fourth applicants were represented by Mr Z. Veličković, a lawyer practicing in Gadžin Han. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 3. On 10 November 2016 the complaints concerning the length of civil and administrative proceedings were communicated to the Government and the remainders of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicants’ personal details as well as the facts in relation to each case are set out in the Annex to this judgment. 5. The applicants complained of the excessive length of different civil and administrative proceedings under Article 6 § 1 of the Convention. 6. In case of the first and fourth applicant the Constitutional Court rejected their the constitutional appeals, whereas in case of the second and third applicant the Constitutional Court found a violation of a right to a trial within reasonable time, but awarded no damages. THE LAW
I. JOINDER OF THE APPLICANT’S COMPLAINTS
7. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applicants’ applications should be joined, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
8. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
A. Admissibility
1. As regards the non-exhaustion of domestic remedies
9. The Government submitted that the first and fourth applicant had failed to properly exhaust domestic remedies. Specifically, they claimed that the said applicants had failed to make proper use of the constitutional appeal procedure. 10. The first and fourth applicants contested this and maintained that they had complained before the Constitutional Court in a proper manner. 11. The Court has consistently held that the rule on the exhaustion of domestic remedies, under Article 35 § 1 of the Convention, requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). 12. In the present case, the applicants had, in their constitutional appeals, relied on Article 32 of the Serbian Constitution which corresponds to Article 6 of the Convention and had complained about the assessment of evidence and the length of the impugned proceedings. In the Court’s view, by so doing the first and fourth applicants provided the national authorities with an opportunity to properly address their complaints, an opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention (see Muršić v. Croatia [GC], no. 7334/13, § 72, ECHR 2016; and Joksimovic v. Serbia, no. 37929/10, § 21, 10 October 2017). The Court thus finds that the first and fourth applicants had properly exhausted domestic remedies. The Government’s preliminary objection in this respect must therefore be dismissed. 2. As regards the loss of victim status
13. The Government submitted that the second and third applicants could not claim to be victims of the alleged violation. 14. The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaint and should therefore be joined to the merits. 3. Conclusion
15. The Court otherwise considers that the applicants’ applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
1. As regards the first and fourth applicants (Ms Hasiba Hrustić and Ms Mirjana Ilić, applications nos. 8647/16 and 20851/16)
16. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17). 17. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 18. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present cases. Having regard to its case-law on the subject (see, for example, Nemet v. Serbia, no. 22543/05, 8 December 2009, Blagojević v. Serbia, no. 63113/13, 28 March 2017 and Ković and Others v. Serbia, no. 39611/08 and 2 others, 4 April 2017), the Court considers that in the instant cases the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 2. As regards the second and third applicants (Mr Dragoslav Stojanović and Ms Olivera Stojanović, application no. 12666/16)
19. The Government submitted that as the second and third applicants had obtained decision from the Constitutional Court they had therefore lost their victim status (see paragraph 13 above). In the Government’s opinion, the finding of a violation alone constituted sufficient redress for the breach of the applicants’ right to a hearing within a reasonable time. 20. The second and third applicant disagreed. 21. The Court recalls that an applicant’s status as a “victim” depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004). 22. The Court, in this respect, notes that the Constitutional Court found that the applicants’ right to the determination of their claim within a reasonable time had been violated – thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. 23. The applicants’ victim status then depends on whether the redress afforded was adequate and sufficient, having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004 and Ković, cited above, § 18). 24. In this connection, the Court recalls that in length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97). 25. In the present case, however, the Court notes that the Constitutional Court awarded no compensation at all. 26. The Court therefore concludes that the second and third applicants did not lose their status as victim within the meaning of Article 34 of the Convention. The Government’s preliminary objection in this regard must hence be rejected. 27. In view of the above, the entirety of the relevant facts, and in particular its finding regarding the victim status of the applicants, the Court concludes that in the present case the length of the proceedings in question was excessive and did not meet the “reasonable time” requirement. 28. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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, costs and expenses
30. The applicants claimed various amounts in respect of the non-pecuniary damages suffered by each of them. The applicants also requested various sums in respect of legal costs incurred in the proceedings before both the domestic courts and the Court. The sums requested are indicated in the Annex to the judgment. In addition, the second applicants requested to be awarded pecuniary damage comprising of the value of the plots of land, they had allegedly lost in their dispute, whereas the third applicant requested salaries she would have earned had she remained employed. 31. The Government contested the above-mentioned claims. 32. Regard being had to the documents in its possession and to its case‐law (see Blagojević v. Serbia, no. 63113/13, § 30, 28 March 2017, and Ković and Others v. Serbia, no. 39611/08 and 2 others, §§ 28-31, 4 April 2017) the Court considers it reasonable to award to the applicants the sums indicated in the appended table in respect of non-pecuniary damage and costs and expenses, less any and all amounts which may have already been paid in that regard at the domestic level. 33. As regards the requests for pecuniary damage of the second and third applicants, the Court finds them unsubstantiated. In view of the violation found, specifically its procedural character, the court sees no causal link between the violation found and the pecuniary damage alleged. It therefore rejects their claims in this respect. B. Default interest
34. 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. Decides to join the applications;
2. Decides to join to the merits the Government’s preliminary objection as to the second and third applicant’s victim status, and dismisses it;
3. Declares the applications admissible;
4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant;
5. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after deduction of any amounts which may have already been paid on this basis;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident
No. Application
number and date of introduction
Applicant name
date of birth
nationality
Represented by
Start of proceedings
End of Proceedings
Total length and number of instances since 3 March 2004 (the date on which the Convention came into force); type of dispute (where relevant)
Constitutional Court decision details; just satisfaction awarded (if any)
Non-pecuniary damages and costs and expenses requested in euros; pecuniary damages requested in euros
Amounts awarded for non-pecuniary damage and costs and expenses per applicant in euros (Plus any tax that may be chargeable to the applicants)[1]
8647/16
05/02/2016
Hasiba HRUSTIĆ
21/03/1955
Serbian
_
22/05/2006
26/12/2013
7 years and 7 months
1 level of jurisdiction
(administrative proceedings)
Už-1245/2014
7 September 2015
(no violation found)
3,000
3,000
12666/16
26/02/2016
Dragoslav STOJANOVIĆ
24/01/1938
Serbian
Olivera STOJANOVIĆ
06/04/1940
Serbian
Zoran VELIČKOVIĆ
Gadžin Han
11/08/1996
21/05/2013
9 years and 2 months
2 levels of jurisdiction
(civil proceedings)
Už-5699/2013
26 November 2015
(violation found, but no damages awarded)
3,500 + 1,090;
2,971
jointly
3,400+500
jointly to the applicants
20851/16
07/04/2016
Mirjana ILIĆ
15/07/1969
Serbian
Svetislav VELIČKOVIĆ
Niš
22/04/2005
01/12/2008
3 years and 7 months
1 level of jurisdiction
(labour dispute)
Už-5721/2013
6 October 2015
(no violation found)
10,000 + 1860;
15, 000
1,600+500
APPENDIX
[1]. Less any amounts which may have already been paid on this basis at the domestic level.