NICHEPORUK AND OTHERS v. RUSSIA - 19538/10 (Judgment : Article 3 - Prohibition of torture : Third Section Committee) [2018] ECHR 284 (29 March 2018)

JUDGMENT STRASBOURG 29 March 2018 This judgment is final but it may be subject to editorial revision. In the case of Nicheporuk and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President, Dmitry Dedov, Jolien Schukking, judges, and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 8 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government ("the Government"). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities. In application no. 35782/12 the applicant also raised other complaints under the Convention, including under Article 13 of the Convention that he did not have an effective remedy to complain about the poor conditions of his detention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE GOVERNMENT'S REQUEST TO STRIKE OUT APPLICATION No. 35782/12 UNDER ARTICLE 37 § 1 OF THE CONVENTION 6. In case no. 35782/12 the Government submitted a unilateral declaration which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government's request to strike the application out and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95 , § 75, ECHR 2003-�VI). III. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 7. Relying on Article 3 of the Convention the applicants complained principally about the poor conditions of their detention, aggravated by the seriousness of their medical problems. The applicant in application no. 35782/12 also relied on Article 13 of the Convention and argued that he had had no effective remedy in this connection. The respective Convention provisions read as follows: Article 3 "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 13 "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ..." 8. The Court notes that the applicants, who suffer from various disabilities, were kept in detention in poor conditions which did not satisfy their special needs. The details of the applicants' detention are indicated in the appended table. The Court refers to the principles established in its case-�law regarding conditions of detention of disabled inmates (see, for instance, Topekhin v. Russia , no. 78774/13 , §§ 78-�81, 10 May 2016, and Butrin v. Russia , no. 16179/14 , §§ 46-�51, 22 March 2016). It reiterates in particular, that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in securing detention conditions which correspond to the special needs resulting from his disability (see Butrin , cited above § 49; Semikhvostov v. Russia , no. 2689/12 , § 72, 6 February 2014; Zarzycki v. Poland , no. 15351/03 , § 102, 12 March 2013; and Farbtuhs v. Latvia , no. 4672/02 , § 56, 2 December 2004). 9. In the cases of Topekhin , Butrin and Semikhvostov (all cited above), the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, as well as the Government's objection concerning the application of the six-month rule to the continuous situation of the applicant's detention in case no. 19538/10 , and their objections of the applicant's failure in application no. 37026/13 to exhaust domestic remedies, as well as him having lost the victim status in view of the domestic award for the violation of his rights as a result of the poor conditions of his detention, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, including the case-law covering the application of the six-month rule to continuous situations (see Guliyev v. Russia , no. 24650/02 , §§ 31-33, 19 June 2008), the exhaustion issue for similar cases (see Morozov v. Russia , no. 38758/05 , § 47, 12 November 2015, and Butrin, cited above, §§ 43-45) and victim status questions (see Firstov v. Russia , no. 42119/04 , §§ 26-38, 20 February 2014, with further references), the Court dismisses the Government's objections raised in respect of applications nos. 19538/10 and 37026/13 and considers that in the instant case the conditions of the applicants' detention, exacerbated by their physical impairments, amount to "inhuman and degrading treatment" within the meaning of the Convention. 11. The Court further notes that the applicant in application no. 35782/12 did not have at his disposal an effective remedy in respect of the complaint under Article 3 of the Convention (see, among other authorities, Butrin, cited above, §§ 43-45, and Semikhvostov, cited above, §§ 61-�68). 12. These complaints are therefore admissible and disclose a breach of Article 3 in respect of all three applicants and Article 13 of the Convention in respect of the applicant in application no. 35782/12 . IV. REMAINING COMPLAINTS 13. In the application no. 35782/12 , the applicant also raised other complaints under various Articles of the Convention. 14. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 15. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. 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." 17. Regard being had to the documents in its possession and to its case-�law (see, in particular, Butrin v. Russia, no. 16179/14 , §§ 72-74, 22 March 2016, and Semikhvostov v. Russia, no. 2689/12 , §§ 88-90, 6 February 2014), as well as the fact that the applicant in application no. 37026/13 did not make a proper claim for just satisfaction, the Court considers it reasonable to award the sums indicated in the appended table. 18. 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. Rejects the Government's request to strike application no. 35782/12 out of its list of cases under Article 37 of the Convention on the basis of the unilateral declaration which they submitted; 3. Declares the complaints concerning the conditions of detention of disabled inmates and the complaint raised by the applicant in application no. 35782/12 about the lack of any effective remedy admissible, and the remainder of the application no. 35782/12 inadmissible; 4. Holds that these complaints disclose a breach of Article 3 of the Convention on account of the applicants' detention in poor conditions; 5. Holds that the complaint raised by the applicant in application no. 35782/12 discloses a breach of Article 13 of the Convention on account of the lack of an effective remedy to complain about poor conditions of detention; 6. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 7. Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 29 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Luis López Guerra Acting Deputy Registrar President APPENDIX List of applications raising complaints under Article 3 and Article 13 of the Convention (conditions of detention of disabled inmates and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Type of disability Detention with disability: facility and periods Specific grievances Amount awarded for pecuniary and non-pecuniary damage per applicant (in euros) [1] Amount awarded for costs and expenses per application (in euros) [2] 19538/10 19/03/2010 Anton Borisovich Nicheporuk 27/06/1978 Savchenkova Lyudmila Anatolyevna Tomsk leg paralysis IK-29, Kemerovo Region 01/03/2007 to 23/12/2012 5 year(s) and 9 month(s) and 23 day(s) numerous episodes of treatment in the prison hospital of IK-5, Kemerovo Region 21/05/2007 to 08/11/2012 5 year(s) and 5 month(s) and 19 day(s) three episodes of treatment in the prison hospital of IK-16, Kemerovo Region 19/12/2007 to 27/04/2009 1 year(s) and 4 month(s) and 9 day(s) three episodes of treatment in the prison hospital of IK-12, Kemerovo Region 15/01/2008 to 11/06/2009 1 year(s) and 4 month(s) and 28 day(s) IK-13, Novosibirsk Region 04/02/2013 to 14/05/2013 3 month(s) and 11 day(s) transfers between IK-2 and IK-4 in Tomsk Region 04/06/2013 pending More than 4 year(s) and 7 month(s) and 24 day(s) lack of a wheelchair between 2007 and 2011; no opportunity to visit dining room; toilet sink was not adapted for the needs of disabled persons lack of a wheelchair between 2007 and 2011; inadequate (steep) wheelchair ramps; full dependence on inmates' assistance lack of a wheelchair, full dependence on inmates' assistance lack of a wheelchair, full dependence on inmates' assistance broken wheelchair; toilet sink was not adapted for the needs of disabled persons; full dependence on inmates' assistance lack of wheelchair; full dependence on inmates' assistance 15,000 35782/12 16/05/2012 Konstantin Ivanovich Pantyukhin 23/11/1967 Markov Eduard Valentinovich Budapest optic atrophy IK-8, Republic of Udmurtia 07/06/2011 to 02/12/2014 3 year(s) and 5 month(s) and 26 day(s) the facility was not adapted for the needs of persons with visual impairments, the applicant did not receive any assistance in his everyday needs 15,000 37026/13 20/05/2013 Rinat Aydarovich Shakirov 28/05/1963 amputated part of the foot IZ-1, Mariy-El Republic 23/04/2009 to 08/07/2009 2 month(s) and 16 day(s) IK-5, Mariy-El Republic 08/07/2009 to 05/02/2010 6 month(s) and 29 day(s) IK-3, Mariy-El Republic 06/02/2010 to 07/12/2011 1 year(s) and 10 month(s) and 2 day(s) absence of the prescribed orthopaedic footwear and a walking cane absence of the prescribed orthopaedic footwear and a walking cane absence of the prescribed orthopaedic footwear and a walking cane 0 [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII