ECHR: Gubkin v. Russia

On 23 April, the European Court of Human Rights released its decision on the case Gubkin v. Russia (Application no. 36941/02).

The Court reinstated its jurisprudence on exhaustion of domestic remedies and overcrowding of prisons (see also Popov and Vorobyev v. Russia):

89.  The Court reiterates that it has already found a violation of Article 13 on account of the absence of an effective remedy for inhuman and degrading conditions of detention, finding as follows (see Benediktov, cited above, § 29, and Vlasov v. Russia, no. 78146/01, § 87, 12 June 2008):

“[T]he Government did not demonstrate what redress could have been afforded to the applicant by a prosecutor, a court or other State agencies, taking into account that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not only concern the applicant’s personal situation (cf. Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The Government have failed to submit evidence as to the existence of any domestic remedy by which the applicant could have complained about the general conditions of his detention, in particular with regard to the structural problem of overcrowding in Russian detention facilities, or that the remedies available to him were effective, that is to say that they could have prevented violations from occurring or continuing, or that they could have afforded the applicant appropriate redress (see, to the same effect, Melnik v. Ukraine, no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; and Ostrovar v. Moldova, no. 35207/03, § 112, 13 September 2005).”

90.  These findings apply a fortiori to the present case, in which the Government did not point to any domestic remedy by which the applicant could have obtained redress for the allegedly inhuman and degrading conditions of his detention or put forward any argument as to its efficiency.

As in the contemporary judgment indicated above, the court found overcrowding of prisons to constitute a violation of article 3 ECHR on prohibition of torture and cruel, inhuman or degrading treatment or punishment:

92.  As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Valašinas v. Lithuania, no. 44558/98, §§ 100-01, ECHR 2001-VIII). When a person is held in detention, the State must ensure that he is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas, cited above, § 102 and Kudła, cited above, § 94). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant’s specific allegations (see Dougoz v. Greece, 6 March 2001, § 46, Reports of Judgments and Decisions 2001-II). The duration of detention is also a relevant factor.

93.  The Court notes that in the present case the parties have disputed certain aspects of the conditions of the applicant’s detention. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government have failed to refute.


99.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Benediktov, cited above, §§ 31 et seq.; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III).

100.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for almost seven years was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.

101.  There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention from 15 June 1998 to 25 April 2005 in the facility IZ-61/1 of Rostov-on-Don, which the Court considers to be inhuman and degrading treatment within the meaning of Article 3 of the Convention.

Furthermore, the Court set up important principles on detention on remand, in particular with regard to the assessment of its “lawfulness”, deciding the absence of any grounds by judicial authorities on the detention directly affects the “lawfulness” of the detention under article 5(1):

112.  The Court reiterates that the trial court’s decision to maintain a custodial measure would not breach Article 5 § 1 provided that the trial court “had acted within its jurisdiction … [and] had the power to make an appropriate order” (see Korchuganova v. Russia, no. 75039/01, § 62, 8 June 2006). It is not in dispute that on 12 February 2002 the trial court acted within its powers and there is nothing to suggest that its decision to maintain the applicant’s custodial measure was invalid or unlawful under domestic law at the relevant time. However, the Court observes that on 12 February 2002 the Rostov Regional Court gave no reasons for its decision to remand the applicant in custody. The Regional Court also failed to set a time-limit for the continued detention or for a periodic review of the preventive measure. It follows, therefore, that the applicant remained in a state of uncertainty as to the grounds for his detention from 12 February to 1 July 2002, when the Regional Court re-examined his detention.

113.  The question thus arises whether this could be considered to be “an appropriate order”. In this respect the Court has already found a violation of Article 5 § 1 (c) of the Convention in a number of cases concerning a similar set of facts. In particular, it has held that the absence of any grounds given by judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Khudoyorov, cited above, § 134; Nakhmanovich v. Russia, no. 55669/00, §§ 70-71, 2 March 2006; and Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002). Permitting a prisoner to languish in detention without a judicial decision based on concrete grounds and without setting a specific time-limit would be tantamount to overriding Article 5, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Khudoyorov, cited above, § 142).

114.  The Court sees no reason to reach a different conclusion in the present case. It considers that the order of 12 February 2002 did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, which together constitute the essential elements of the “lawfulness” of detention within the meaning of Article 5 § 1.

115.  There has therefore been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 12 February to 1 July 2002.

The Court also adjudicated on the length of detention on remand and its proportionality:

140.  The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion of his involvement in the commission of several criminal offences. However, after a certain lapse of time the persistence of a reasonable suspicion, in itself, no longer sufficed. Accordingly, the domestic authorities were under an obligation to analyse the applicant’s personal situation in greater detail and to give specific reasons for holding him in custody.

141.  The Court observes that in the period from March 2000 to July 2002 the domestic court maintained the applicant in detention without citing any particular reason. Subsequently, in the period from July 2002 to May 2004 the court extended the applicant’s detention on eight occasions. The only ground invoked for continuing the applicant’s detention was the fact that he was charged with serious and particularly serious criminal offences whose dangerousness alone was considered a sufficient reason for holding him in custody (see, in particular, paragraphs 21, 23 and 25 above). Each time the court used the same summary formula to extend the pre-trial detention of five persons, without describing their personal situation in any detail.

142.  As regards the domestic authorities’ reliance on the gravity of the charges as the sole and decisive element, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko, cited above, § 102; Khudoyorov, cited above, § 180; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001).

143.  In the present case the domestic courts refused to take into account any specific facts put forward by the applicant in his appeals against extensions and applications for release (see, for instance, paragraph 25 above). The courts assumed that the gravity of the charges carried such a preponderant weight that no other circumstances could have warranted the applicant’s release. The Court reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).

144.  The given state of affairs was further aggravated by the fact that the domestic court issued collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee – a practice that the Court has found to be incompatible, in itself, with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, no. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006). By extending the applicant’s detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.

145.  Regard being had to the above circumstances, the Court finds that by failing to address the concrete facts of the applicant’s individual situation, by failing to consider the possibility of applying an alternative preventive measure and by relying solely on the gravity of the charges, the authorities extended his detention on grounds which cannot be regarded as “sufficient”. In those circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

146.  The Court finally observes that, notwithstanding the inordinate overall period of the applicant’s detention, at no point in the proceedings did the domestic authorities consider whether the length of his detention had exceeded a “reasonable time” or whether there was any room for applying an alternative measures to ensure his appearance at trial.

147.  There has therefore been a violation of Article 5 § 3 of the Convention.

Finally it concluded  by finding violations of the Convention on length of judicial proceedings and right to an effective remedy:

166.  The Court accepts that the involvement of five co-defendants in the proceedings in itself made the trial sufficiently complex. However, in the Court’s view, the complexity of the case does not suffice, in itself, to account for the length of the proceedings. Moreover, the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko, cited above, § 133, and Kalashnikov, cited above, § 132).

167.  As regards the applicant’s conduct, the Court notes the Government’s argument that throughout the domestic court proceedings the applicant filed numerous requests in connection with his case, both during his trial and between hearings. It further notes that on many occasions the hearings were adjourned because the applicant sought replacement of the legal-aid counsel assigned to him by the domestic authorities. In this connection, the Court observes that Article 6 does not require a person charged with a criminal offence to co-operate actively with the judicial authorities. In particular, applicants cannot be blamed for taking full advantage of the resources afforded by national law in their defence (see Rokhlina, cited above, § 88, and Kalashnikov, cited above, § 129). As to the Government’s argument about the failure of the applicant’s representatives to appear before the trial court, the Court notes that throughout the trial the applicant was represented by legal-aid counsel appointed by the State. He therefore had little influence upon them and could not be held responsible for their absences. The Court accepts that the applicant was accountable for a certain delay resulting from his requests for adjournments in view of his allegedly poor health. However, this delay was negligible in view of the overall length of the proceedings.

168.  Turning to the conduct of the domestic authorities, the Court observes that the Government have not submitted any satisfactory explanation for the rather substantial periods of inactivity on the part of the domestic court when it came to the examination of the applicant’s convictions of 13 June 2000, 14 May 2001 and 17 May 2004 on appeal. In this connection the Court notes that the periods under consideration amounted to five, eight and ten months respectively, and that their aggregate length delayed the proceedings by almost two years.

169.  Having regard to the foregoing, and especially to what was at stake for the applicant, given that he had been held in detention throughout the whole period in which the proceedings were pending, the Court considers that the length of the proceedings in the present case did not satisfy the “reasonable time” requirement.

170.  There has accordingly been a breach of Article 6 § 1 of the Convention.

171.  In so far as the applicant’s complaint about the lack of an effective domestic remedy is concerned, the Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła, cited above, § 156). It notes that the Government did not indicate any remedy that could have expedited the determination of the applicant’s case or provided him with adequate redress for delays that had already occurred (see Sidorenko v. Russia, no. 4459/03, § 39, 8 March 2007, and Klyakhin, cited above, §§ 100-01). In particular, the Government did not explain how applications to the Prosecutor’s Office or the Rostov Regional Court that the applicant could have made in the course of the criminal proceedings could have expedited those proceedings.

172.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling on his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

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  1. ECHR: Moskovets v. Russia « The International Source

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