SHAPOVAL v. RUSSIA - 767/12 (Judgment : Prohibition of torture : Second Section Committee) [2021] ECHR 644 (13 July 2021)

JUDGMENT STRASBOURG 13 July 2021 This judgment is final but it may be subject to editorial revision. In the case of Shapoval v. Russia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Carlo Ranzoni, President, Egidijus Kūris, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the application (no. 767/12 ) 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 stateless person, Ms Natalya Vladimirovna Shapoval (“the applicant”), on 26 December 2011; the decision to give notice of the application to the Russian Government (“the Government”); the Government’s objection to the examination of the application by a Committee and to the Court’s decision to reject it; the parties’ observations; Having deliberated in private on 1 June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The case concerns the applicant’s arrest and detention by the authorities of the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT” - see for more details Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99 , §§ 28-185, ECHR 2004-II and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8‑42, ECHR 2012 (extracts)) and their effect on the applicant’s rights under Articles 3, 5, 8 and 13 of the Convention. THE FACTS 2. The applicant was born in 1960. She was granted legal aid and was represented by Mr V. Ţurcan , a lawyer practising in Chișinău. The applicant died on 13 December 2013. Her husband and her son, Mr Vasilii Shapoval and Mr Vladimir Shapoval, respectively, expressed their wish to continue the proceedings before the Court in the applicant’s stead. 3. The Government were represented by their Agents, Mr G. Matyushkin and Mr A. Fedorov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 28 March 2010 the applicant was arrested by the “MRT” authorities on suspicion of embezzlement and kept in detention until her demise on 13 December 2013. During the pre-trial proceedings, the applicant’s lawyer was repeatedly refused access to the criminal file because it allegedly concerned “MRT” state secrets and he was a lawyer from the Republic of Moldova, which was a foreign jurisdiction. 6. The applicant was held in prison no. 1 in Hlinaia. On 18 July 2011 the applicant’s daughter lodged a complaint on behalf of the applicant arguing the lack of necessary medical assistance for her health condition (diabetes, chronic paraproctitis, and pneumonia) and inadequate detention conditions. According to the certificate issued by the prison administration on 18 December 2012, the applicant suffered from diabetes for which the required medical surveillance and treatment were not available in prison no. 1. 7. According to the applicant, all her correspondence was censored during her detention. RELEVANT MATERIALS 8. The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10 , §§ 61-77, 23 February 2016). THE LAW I. GENERAL ADMISSIBILITY ISSUES A. Death of the applicant 9. The Court notes at the outset that the applicant died on 13 December 2013, after lodging the application. Her husband and her son expressed their wish to continue with the application lodged with the Court. The Government did not dispute that they had standing to pursue the application in the applicant’s stead. 10. The Court sees no reason to reject that request. For practical reasons this judgment will continue to refer to Ms Shapoval as the “applicant” although her husband and her son are today to be regarded as having this status (see Dalban v. Romania [GC], no. 28114/95 , § 1, ECHR 1999‑VI, and Brosset-Triboulet and Others v. France [GC], no. 34078/02 , § 58, 29 March 2010). B. Jurisdiction 11. The Government argued that the applicant did not come within their jurisdiction. Consequently, the application should be declared inadmissible ratione personae and ratione loci. 12. The applicant submitted that the Government had jurisdiction due to its control over the “MRT” authorities. 13. The Court notes that the parties in the present case maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others (cited above, §§ 83-101) and in Mozer (cited above, §§ 81‑95). Namely, the applicants submitted that the Government had jurisdiction, while the Government submitted that they had no jurisdiction. The Government expressed the view that the approach to the issue of their jurisdiction taken by the Court in Ilaşcu and Others was wrong and at variance with public international law. 14. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-107) and, more recently, Mozer (cited above, §§ 97-98). 15. The Court notes that in Ilașcu and Others it has already found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991-1992 (see Ilaşcu and Others , cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until at least September 2016 ( Eriomenco v. the Republic of Moldova and Russia , no. 42224/11 , § 72, 9 May 2017), the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others v. Moldova and Russia , no. 23687/05 , §§ 116‑120, 15 November 2011; Catan and Others , cited above, §§ 121-122; and Mozer , cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention ( Mozer , cited above, §§ 110-111). 16. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others , Ivanţoc and Others , Catan and Others , Mozer, and Eriomenco (all cited above). 17. It follows that the applicant in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci . 18. The Court will hereafter determine whether there has been any violation of the applicant’s rights under the Convention such as to engage the responsibility of the respondent State (see Mozer , cited above, § 112). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant complained that she had been held in inhuman conditions of detention without sufficient medical assistance for her health condition, contrary to the requirements of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 20. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 21. The applicant complained about the inhuman conditions in which she had been held in the “MRT” detention facilities. She also complained that she had not been given medical assistance required by her condition (see paragraph 6 above) and was exposed to the risk of contracting tuberculosis. She argued that the medical section in prison was not staffed with specialised doctors and lacked the necessary medication. 22. The Government argued that since the “MRT” was part of Moldovan territory and, in the absence of any control by Russia over the events on that territory, only the Moldovan Government could submit any comments concerning the merits of the present application. 23. The Court recalls that 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 of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96 , § 94, ECHR 2000‑XI; Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 141, 10 January 2012; and Muršić v. Croatia [GC], no. 7334/13 , § 99, 20 October 2016) and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła , cited above, § 94; Idalov v. Russia [GC], no. 5826/03 , § 93, 22 May 2012). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that, even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Mozer, cited above, § 178). 24. In the present case, the Court notes that the applicant described her conditions of detention in detail: smoking inmates, lack of bed linen, toilet not separated from the rest of the cell, lack of shower facilities in the cell, short time outside the cell, overall poor hygiene. It also notes that the respondent Government did not oppose this description. 25. Moreover, the conditions of detention prevailing in the same prison in which the applicant has been detained in the “MRT” have already been found to be substandard (see, for instance, Mozer , cited above, §§ 180 and 181; Braga v. the Republic of Moldova and Russia, no. 76957/01 , § 37, 17 October 2017; Eriomenco , cited above, § 57; Apcov v. the Republic of Moldova and Russia , no. 13463/07 , § 43, 30 May 2017; Draci v. the Republic of Moldova and Russia , no. 5349/02 , § 58, 17 October 2017; Dobrovitskaya and Others v. the Republic of Moldova and Russia , nos. 41660/10 and 5 others, § 53, 3 September 2019). 26. On the basis of the material before it and in the absence of any evidence contradicting the applicant’s submissions, the Court finds it established that the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. 27. The applicant also complained that she had not been given medical assistance required by her condition. In particular, her daughter’s complaint referred to the lack of basic medication for pneumonia, while the certificate issued by the prison administration acknowledged the absence in prison of specialised medical staff and that the continuous monitoring of the level of glucose in her blood was not possible in order to decide on a proper treatment for diabetes (see paragraph 6 above). The respondent Government did not oppose this description. 28. In view of the above, the Court concludes that the prison authorities did not monitor the applicant’s health so as to adapt her specialised medical treatment, despite the recognised need for such surveillance and complaints about her condition. 29. There has accordingly been a violation of Article 3 of the Convention in respect of the conditions of detention and as a result of the authorities’ failure to provide the applicant with sufficient medical assistance and treatment. 30. The Court has established that Russia exercised effective control over the “MRT” during the period of the applicant’s detention (see paragraphs 15-17 above). In the light of this conclusion, and in accordance with its case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Mozer , cited above, § 157). By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights ( ibidem ). 31. In conclusion, and after having found that the applicant was held in inhuman conditions within the meaning of Article 3 of the Convention, as well as that she has been deprived of required medical diagnostics and assistance while in detention (see paragraph 29 above), the Court holds that there has been a violation of that provision by the respondent Government. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 32. The applicant complained of a violation of Article 5 § 1 of the Convention, owing to her detention on the basis of unlawful decisions by the “MRT” authorities. 33. The relevant parts of Article 5 § 1 read: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Admissibility 34. 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 35. The applicant submitted that there was no legal reason to deprive her of liberty. 36. The Government did not make any specific submissions. 37. The Court reiterates that it is well established in its case-law on Article 5 § 1 that any deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law; it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, for example, Del Río Prada v. Spain [GC], no. 42750/09 , § 125, ECHR 2013; and Mozer , cited above, § 134). 38. The Court recalls that in Mozer it held that the judicial system of the “MRT” was not a system reflecting a judicial tradition compatible with the Convention (see Mozer , cited above, §§ 148-49). For that reason it held that the “MRT” courts and, by implication, any other “MRT” authority, could not order the applicant’s “lawful” arrest or detention, within the meaning of Article 5 § 1 of the Convention (see Mozer , cited above, § 150). It made a similar finding in respect of the facts going up to September 2016 in Eriomenco (cited above, § 72). 39. In the absence of any new and pertinent information proving the contrary, the Court considers that the conclusion reached in Mozer is valid in the present case too. 40. There has accordingly been a violation of Article 5 § 1 of the Convention. 41. For the same reasons as those mentioned in paragraphs 30 and 31 above, the Court finds that the respondent Government is responsible for the breach of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTIcle 5 § 4 of the Convention 42. The applicant also complained in essence of a violation of Article 5 § 4 about not having access to the materials of the file. 43. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 44. However, in view of its finding that the detention of the applicant was as a whole contrary to Article 5 § 1 of the Convention, the Court considers that it is unnecessary to examine separately the complaint under the other provisions of Article 5 (see Mozer , cited above, § 163). V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant further complained that her correspondence with her lawyer, the domestic courts and other authorities had been opened by the “MRT” prison authorities. She relied on Article 8 of the Convention, which reads as follows: “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.” A. Admissibility 46. The Court notes that the complaint under Article 8 of the Convention 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 47. The applicant submitted that the opening of all correspondence was a common practice in the “MRT” prisons and referred to a letter received by her lawyer from the administration of another prison in respect of another person which confirmed this practice in the “MRT”. 48. The respondent Government made no specific submissions. 49. The Court notes that the applicant’s allegations had not been disputed and that the censorship of correspondence in the “MRT” prisons has already been established ( Ivan ț oc and Others, cited above, §§ 140-143; Braga, cited above, § 65; M îrca v. the Republic of Moldova and Russia, no. 7845/06 , § 76, 27 April 2021 ; Alimpiev v. the Republic of Moldova and Russia, no. 48802/08 , § 61, 27 April 2021). Accordingly, it accepts the applicant’s statements as an accurate statement of the events. 50. The Court was not informed of any legal basis for the interference with the applicant’s rights. Nor indeed was any justification provided for the necessity of such interference. Accordingly, the Court finds that her right to respect for her correspondence has been breached. There has therefore been a violation of Article 8 of the Convention. 51. For the same reasons as those mentioned in paragraphs 30 and 31 above, the Court finds that the respondent Government is responsible for the breach of Article 8 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 52. The applicant further complained that she had no effective remedies in respect of her complaints under Articles 3, 5 and 8 of the Convention. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 53. The Court notes that the complaint under Article 13 taken in conjunction with Articles 3, 5 and 8 of the Convention 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 54. The applicant submitted that she had had no means of asserting her rights in the face of the actions of the “MRT” authorities. 55. The respondent Government made no specific submissions. 56. The Court reiterates that Article 13 of the Convention requires “the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief” (see among many others, Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania [GC], no. 47848/08 , § 148, ECHR 2014, Ališić and Others v Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08 , § 131, ECHR 2014 and Mozer , cited above, § 207). 57. The Court observes that it found that the applicant’s complaints under Articles 3 and 8 of the Convention were arguable. 58. However, as regards the applicant’s complaint under Article 5 § 1, the Court observes that Article 5 § 4 is the lex specialis in relation to Article 13. In view of its finding above of a violation of Article 5 of the Convention and that it was not necessary to examine separately the complaint under Article 5 § 4 of the Convention in the circumstances of the case (see paragraph 44 above), the Court considers that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention. 59. The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13 in respect of her complaints under Articles 3 and 8 of the Convention. 60. In the absence of any submission by the respondent Government as to any remedies available to the applicant, the Court concludes that the respondent Government is responsible for the violation of Article 13, taken in conjunction with Articles 3 and 8 of the Convention (see Mozer , cited above, § 218; Mangîr and Others v. the Republic of Moldova and Russia , no. 50157/06 , § 72, 17 July 2018; and Eriomenco, cited above, § 98). VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 61. The applicant’s heirs complained under Article 2 of the Convention about the applicant’s death in prison following the lack of medical assistance. The Court notes that it was only in the observations as to admissibility and merits submitted in February 2017 that the applicant’s heirs argued that the respondent Government was also responsible for their wife’s and mother’s death. As the complaint was lodged more than three years after the applicant’s death, it must be declared inadmissible for failure to observe the six-month rule, pursuant to Article 35 §§ 1 and 4 of the Convention. 62. Lastly, the applicant complained under Article 6 of the Convention about the fairness of criminal proceedings against her. However, the applicant had not provided any documentary evidence about the trial against her. For this reason, the Court dismisses the applicant’s complaint as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. 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.” 64. The applicant claimed 250,000 euros (EUR) in respect of non‑pecuniary damage. The applicant did not make any claims in respect of costs and expenses. 65. The Government argued that they were not responsible for the alleged violations and that the applicant’s claim was excessive considering that the claim was formulated by the heirs who were not direct victims. 66. The Court considers that the applicant has suffered a certain level of stress following her unlawful detention in inhuman conditions without adequate medical treatment, as well as the unjustified interference with her private and family life and the lack of an effective remedy. Having regard to the seriousness of the violations found and deciding on an equitable basis, the Court awards in respect of non-pecuniary damage EUR 16,300, plus any tax that may be chargeable. 67. 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 complaints concerning Article 3, 5, 8 and 13 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s inhuman conditions of detention and insufficient medical treatment; 3. Holds that there has been a violation of Article 5 § 1 of the Convention; 4. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention; 5. Holds that there has been a violation of Article 8 of the Convention; 6. Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and 8 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 16,300 (sixteen thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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; 8. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Carlo Ranzoni Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII