Qualification by the European Court of Human Rights of Degrading Treatments in Penitentiary Institutions

Sergeeva Anzhelika Anatol'evna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (Branch) All-Russian State University of Justice 199178, Russia, Cankt-Peterburg, g. Saint Petersburg, ul. 10-Ya liniya v.o., 19 lokhi@yandex.ru Other publications by this author     Sokolova Elena Valer'evna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (Branch) All-Russian State University of Justice 199034, Russia, Saint Petersburg, Saint Petersburg, ul. 10th line V.O., 19 lokhi@rambler.ru Other publications by this author

Pitulko Kseniya Viktorovna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (branch) of the All-Russian State University of Justice 197341, Russia, Saint Petersburg, Saint Petersburg, ul. 10th line V.O., 19 lokhi@rambler.ru

The issue under consideration has been reflected in a number of rulings issued on complaints of persons in isolation from society. As you know, the conditions of detention in pre-trial detention centers, correctional colonies and other institutions of the penal system in Russia differ significantly from European penitentiary practice. Although countries such as Brazil, Egypt, India and Thailand are leading in the "anti-rating" of prisons ^[1], there are practically no analogues to Russian penitentiary institutions among the states that recognize the jurisdiction of the ECHR. At the same time, according to the calculations of the Institute of Criminology and Criminal Law of the University of Lausanne, it is the Federal Penitentiary Service of Russia that has the largest budget in terms of cost, although the cost of keeping prisoners in Russia is the lowest in Europe – 2.2 euros per day ^[2]. Naturally, under such circumstances, the compliance of the conditions of detention with the Minimum Standard Rules for the Treatment of Prisoners in 1955 is very relative. Nevertheless, the ECHR adheres to universal tactics in this matter and considers cases of degrading treatment on common (uniform) grounds. Although the jurisdiction of the ECHR no longer extends to the territory of Russia, the experience of cooperation with it has brought a number of quite interesting innovations to the national legal system. Therefore, a brief overview of the legal positions of the ECHR is of scientific and practical interest

The first of the significant decisions of the ECHR affecting the compliance of Russian standards for the treatment of prisoners with convention norms was the resolution of 15.07.2002 in the case "Kalashnikov v. the Russian Federation" (complaint No. 47095/991) ^[3]. The following is established in the case. The applicant was charged with committing an economic crime and a preventive measure in the form of detention was chosen. Prior to the consideration of the case on the merits, he was held in a pre-trial detention facility in the following conditions. In a cell with an area of 17 square meters, equipped with eight sleeping places, 24 people were at the same time. The electric light was constantly on in the room, the TV was working, there was no personal space for those in the cell. The requirements of a sanitary and hygienic nature were not observed: the place for eating was equipped next to the toilet, there was no screen or partition for the bathroom, there were household insects in the room. The above, in the applicant's opinion, does not meet the Minimum Standards for the Treatment of Prisoners. The ECHR found a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits the use of torture and degrading treatment. In this case, a person who has not yet been found guilty of committing a crime was subjected to excessive legal restrictions and was actually placed in conditions of inhuman detention. The desirable standard for the arrangement of the chamber is 7 sq. m per person (Second general report of the European Committee for the Prevention of Torture and Inhuman and Inhumane Treatment, CPT/Inf (92)3, 43). Overcrowding of the cell, unsanitary conditions in it and conditions of detention harmful to the applicant's health and well-being are equated to degrading treatment. The applicant was awarded compensation in the amount of 5,000 euros.

The positive and negative consequences of making a decision can be characterized as follows. It is definitely positive that since the adoption of this decision, transformations have begun in the Russian Penal System aimed at its modification and, in particular, improving the conditions of detention of prisoners. Conceptual documents defining the main directions of development of legal mechanisms for serving criminal sentences were adopted, although not fully implemented. The position of the Russian authorities can be negatively assessed: the conditions of the applicant's detention cannot be equated with inhuman treatment or torture, since all other Russian prisoners are held in approximately the same conditions due to economic problems.

Over the next 10 years, the European Court of Human Rights adopted about 80 more judicial acts with a similar plot of the case, and about 350 complaints have not yet been considered.

Quite interesting in this context is the Decision of 16.10.2014 in the case "Belov v. the Russian Federation" (complaint No. 27623/06) ^[4]. The applicant was sentenced to a long term of imprisonment in the murder case. During the criminal proceedings, he was detained in a pre-trial detention center for a year and a half. The area of the cell was 8 sq. m., a one-time stay of five prisoners was organized in it. Meals were taken once a day, walks were not provided, there were no individual sleeping places. During the departmental inspection, the general sanitary condition of the institution was found unsatisfactory. The applicant applied to the court with a civil claim in connection with improper conditions of detention. The Russian court dismissed the claim, but stated in the decision that part of the applicant's statements regarding the conditions of detention were justified. The complaint was declared admissible. The Court concluded that the conditions of the applicant's detention amounted to inhuman and degrading treatment. In the present case, the representatives of the Russian Federation demanded that the complaint be declared inadmissible, arguing that its consideration began five years after the applicant was transferred from the pre-trial detention center to the correctional colony. In other words, the admissibility of the complaint was justified by the expiration of the deadline for its submission. On the merits of the complaint, the authorities of the Russian Federation did not submit objections. In fact, this meant the recognition of the circumstances set out in it. The ECHR found a violation of Article 3 of the ECHR and awarded the applicant compensation in the amount of 5,000 euros. It should be noted that the ECHR gives a "formal" assessment of the violations committed, awarding standard amounts of compensation for violations of, for example, article 3 of the ECHR (for example, comparing the circumstances of detention in the case "Kalashnikov v. the Russian Federation" and in the case "Belov v. the Russian Federation").

In this case, a gap was once again found in the perceptions of the minimum standards of comfort applicable to persons isolated from society in connection with the commission of a crime. As a negative aspect, it should be noted that when considering the complaint by representatives of the State, no arguments were formulated against its satisfaction or other arguments explaining the admissibility of the detention of the accused in conditions similar to those described in the complaint. This means that the need to modernize the institutions of the penitentiary system is not recognized as a priority, and the sanitary situation existing in them seems normal.

This conclusion is confirmed, for example, by the rather incorrect public statement of the Director of the Federal Penitentiary Service of Russia regarding the fact that only "odious individuals" complain to the European Court of Human Rights about the conditions of detention ^[5]. It is not entirely clear which category of convicts was meant, but if we turn to the personality characteristics of the applicants in the above cases, as well as in others considered by the European Court of Human Rights in 2012-2020, we can conclude that none of them was convicted in a high-profile criminal case, did not have the status of a public figure or what whatever the public reputation.

On the other hand, five years after the decision on this case was made, a legislative initiative appeared concerning the granting to persons in isolation from society the right to claim compensation for violation of conditions of detention ^[6]. Since the Penal Enforcement Code of the Russian Federation and the Federal Law "On the Detention of Suspects and Accused of Committing Crimes" contain norms that meet the Minimum Standard Rules for the Treatment of Prisoners in 1955, the implementation of this initiative will help eliminate the most gross deviations from them.

At the same time, it can be noted that the award of compensation will provide additional reasoning to the authorities when considering similar complaints in the future: in fact, this means recognition of the violation and its elimination by the resources of national law. Accordingly, the exhaustion of domestic legal protection measures will entail a different qualification: in the national court, convicted or accused will receive recognition of the rights guaranteed by the penal enforcement legislation, as a result of which it will be much more difficult to assess the complaint as acceptable in the ECHR. Under such circumstances, the modernization of institutions of the penal system will lose the necessary intensity.

Due to the fact that Russian courts award scanty compensation to persons who appeal against improper conditions of detention, the ECHR has long ago formed the position that civil lawsuits with such claims are not effective remedies (ruling of 05.02.2013 in the case "Norkin v. the Russian Federation", complaint No. 21056/11).

As of September 1, 2021, 471,490 people were held in institutions of the penitentiary system, of which 108,306 were in pre-trial detention centers ^[7]. For comparison, in the countries in the top five of this rating, there are fewer prisoners at times: Great Britain – 84.5 thousand people, Poland – 73.8 thousand people, France – 69.5 thousand people, Germany – 64.2 thousand people ^[8]. Naturally, analyzing these data, it is necessary to proceed from the fact that the population of Russia, the number of registered crimes, and the number of persons against whom criminal cases are being considered differ significantly. The low-budget detention of convicts is due to both crisis economic phenomena and other objective circumstances.

But, despite this, there is a need for at least a partial change in this principle. For example, in one of the cases, the ECHR analyzed in the final decision documents submitted by the Ministry of Internal Affairs of Russia containing specifications of equipment for transporting arrested persons: a single cell in a van has a size of 05.x0.6 m, while the seating area has a width of 0.45 m; when in a van, prisoners must remain in a sitting position, despite the fact that each transportation exceeded three and a half hours. During the transfer to the correctional colony, prisoners were forbidden to use the toilet (resolution of 10.07.2014 on complaint No. 8589/08) ^[9]. Since the ECHR proceeds from the fact that the minimum degree of ill-treatment includes real bodily injury or excessive physical and moral suffering, it recognizes degrading treatment in which a person is deliberately caused a sense of inferiority. It is logical to assume that long-term transportation in the conditions given above generates the most unsightly associations. The European Committee for the Prevention of Torture and Degrading Treatment recognized transportation in cabins with an area of 0.5-0.8 sq. m unsuitable for transporting a person, regardless of the duration of the trip. In 2018, the ECHR united in one proceeding the cases of several applicants who complained about unbearable conditions of transportation in vans, awarding each about 1,500 euros (resolution of 14.06.2018 on complaint No. 9094/05). At the same time, one of the applicants spent a long time on an area of 0.2 sq.m. In some cases, convicts appeal against the conditions of detention in a correctional colony (for example, in the case "Yakovlev and Others v. the Russian Federation" ^[10], considered on February 22, 2018, it was found that the applicants were provided with personal space of 1.8 sq.m.). 

At the same time, due to the increased activity of the European Court of Human Rights in considering complaints about conditions of detention, the State has made strategic efforts to modernize the penal enforcement system: in particular, the Federal Target Program "Development of the Penal Enforcement System (2007-2016)" has been developed and approved. Although it assumed that only 12.9% of pre-trial detention facilities would meet international standards after the end of its implementation, but if we consider that in 2007 only 0.5% of pre-trial detention facilities could be recognized as corresponding to them, this can be regarded as an unconditional achievement. The new long-term program, which will be implemented until 2025, assumes that 100% of persons isolated from society in pre-trial detention centers and correctional institutions will be kept in accordance with international standards ^[11]. Its implementation will require 96,500 million rubles.

It is also quite interesting that, recognizing the fact of degrading treatment, the European Court of Human Rights takes into account voluntary offers for payment of monetary compensation from the State with the subsequent termination of proceedings in the case. At the same time, he strictly ensures that the conditions of negotiations between the applicant and representatives of the national authorities are not prematurely publicized (in the above-mentioned incident, the applicants for which were the defendants in the criminal case of the murder of B. Nemtsov, the complaints of the two defendants were declared inadmissible on this basis). From this it can be concluded that the court adheres to the ideas of a possible mediative outcome of the case, giving this perspective to the discretion of the parties, but not recognizing the permissibility of open public negotiations. This does not violate the standard of publicity of judicial proceedings and contributes to the confidential settlement of mutual claims, which is generally logical (when raising such a question in national jurisdiction, obviously, no public discussion is held on the issue of determining the amount of compensation).

In addition, the applicant's refusal to accept the terms of such a "settlement agreement" is fraught with a serious reduction in the amount of compensation awarded. For example, in the case "Karachentsev v. the Russian Federation" (judgment of April 17, 2018 on complaint No. 23229/11) ^[12] the court found that the authorities offered the applicant compensation in the amount of 8800 euros. At the same time, the applicant appealed against being kept in a metal cage during videoconference sessions organized for his participation in court sessions. Such a method is a priori recognized as humiliating and incompatible with the standards of democratic justice. The applicant refused the compensation offered by the authorities, and the court considered his complaint on the merits. Recognizing the violation of Article 3 of the ECHR, the court decided to recover in favor of the applicant an amount almost ten times less – 950 euros (despite the fact that the applicant himself demanded 29,700 euros as compensation for material damage and 56,000 euros as compensation for moral damage). The very fact of the offer of compensation by the State is a positive moment, reflecting the recognition of violations of convention rights.

The practice of the ECHR recognizing complaints about the duration of detention as unacceptable is also quite interesting. For example, in this regard, the court has created an approach to assessing the "efficiency" of the trial (in other words, taking into account the particular complexity of the case and a large array of investigative actions, the court recognizes the duration of the proceedings necessary, and the complaint is unfounded). For example, in 2018, the court issued several such decisions: one – against a former judge (the case "Savelyuk v. the Russian Federation"), three more – on complaints of convicts in complex multi-episode cases related to organized criminal activity. In the latter case, the court also proceeded from the applicants' links with the "criminal world", the vulnerability of the victims and the impossibility of applying alternative preventive measures to detention. In 9 cases combined into one proceeding, the court agreed that the principles of evidence assessment were not violated during the criminal prosecution of the applicants, and in another complaint from 8 applicants, the Russian authorities observed the principles of detention ^[13].

In this regard, the legal positions of the European Court of Human Rights can be recognized as a kind of "catalyst" that accelerated the development and modernization of institutions of the penal system of the Russian Federation. Reputational damage, which inevitably occurs when unsanitary conditions and other humiliating nuances associated with the detention of persons in isolation from society are publicly stated, is generally an acceptable negative consequence, the eradication of the causes of which is facilitated by a public study of these circumstances and a negative public response.