How do European Court judgments influence detention conditions in Russia?

By Natalia Taubina, Director of the Public Verdict Foundation

Background

Since Russia’s accession to the Council of Europe and recognition of the jurisdiction of the European Court of Human Rights (Court) on 5 May 1998, the Court has delivered more than 600 judgments finding inhuman and degrading treatment of individuals in Russia’s restricted-access detention facilities. This figure represents one-third of all the judgments in the Court’s history in this category of cases, making Russia by far the worse culprit in this area among all Council of Europe member States.

Overall, judgments on inhuman and degrading treatment cases account for 31 per cent of all Court judgments against Russia[1]. For Russian human rights organizations including the Public Verdict Foundation, these judgments offer a framework for the elaboration and implementation of programmes aimed at improving detention conditions as well as negotiation with the State authorities and demands for changes.

Moscow remand center "Matrosskaya tishina", mid 90s, from the archives of the Moscow Center for Prison Reform

The judgment in Kalashnikov v. Russia (application no. 47095/99) of July 2002 was the first judgment against Russia concerning detention conditions in pre-trial detention centres (SIZOs), followed by more than 200 similar cases which now form the Kalashnikov group of cases, pending implementation before the Committee of Ministers (CM). In January 2012, the Court also issued a pilot judgment in Ananyev and others v. Russia (applications no. 42525/07 and 60800/08). This pilot judgment and the judgments in the Kalashnikov group of cases address the problems of cell overcrowding in SIZOs and inadequate detention conditions, such as a lack of separation between the sanitary and living areas, limited access to natural light, and problems with water, heating and ventilation.

In Ananyev and Others v. Russia, the Court separately addressed the excessive recourse to detention on remand as a preventive measure and the need to take steps at the domestic level to ensure that remand in custody be used only as an exceptional measure. It stated the need for a domestic remedy for appealing detention conditions and obtaining compensation. The Court also noted that the award of compensation should not be conditional on the claimant’s ability to prove the fault of officials or bodies and the unlawfulness of their actions.

Over the years, Russia has in turn made substantial efforts to improve pre-trial detention conditions[2]. In particular, the extent of SIZO overcrowding has tangibly decreased. Although certain facilities continue to fall short of the minimum standard of floor space per person, the nightmarish situation of the 1990s is now mostly a thing of the past. However, a number of problems persist.

Current situation with detention conditions

The information below is based on an analysis prepared by the Public Verdict Foundation using publicly available data, such as the findings of public monitoring commissions (PMCs) in Krasnoyarsk Territory, Irkutsk Region, Sverdlovsk Region, Kaliningrad Region, as well as information provided by the Association of Independent Observers, Committee Against Torture NGO and Russia Behind Bars Movement for Prisoners' Rights. More details can be found in the Memorandum entitled “The execution of the European Court of Human Rights pilot judgment on the case of Ananyev and others vs. Russia (applications nos. 42525/07 and 60800/08)” submitted by the Foundation under Rule 9(2) of the Rules of the C for the supervision of the execution of judgments and of the terms of friendly settlements[3].

Material conditions

Today, Russia’s Federal Penitentiary System (FSIN) operates facilities at various degrees of wear and tear. Alongside recently constructed buildings (such as SIZO-2 in Nizhny Novgorod) that generally meet the minimum standards for detention facilities, the FSIN continues to use buildings constructed in the 15th to 19th centuries (in Kaliningrad Region and Krasnoyarsk Territory), the 18th century (in Kaluga Region) and the early 20th century (in Nizhny Novgorod, Sverdlovsk and Irkutsk Regions). At 70 to 90 per cent of depreciation, these facilities are beyond repair. Problems include pervasive and overgrown mould, damp walls, leakages, lack of proper heating in the cold season and inadequate sewage. Detainees at SIZO-1 in Nizhny Novgorod, for example, use a hot water tank for heating their cell in winter when outside temperatures can be as low as minus 20 degrees Celsius and even lower. Some old facilities do not have toilets. Outhouse toilets have to be used, while inmates confined to their cells have to use a bucket as a toilet.

In a number of regions, punishment cells in penitentiary facilities fail to meet the standards for prisoners’ accommodation due to insufficient lighting and ventilation, low temperatures in winter, concrete floors, black mould on walls, damp air, toilets lacking separation from the living area and no sinks. These problems have been reported, in particular, in Sverdlovsk, Kaliningrad, Nizhny Novgorod and Irkutsk Regions, and in Krasnoyarsk Territory.

Still common is the use of unsuitable cells at police stations for prolonged and overnight detention. Specifically, temporary detention wards at all police stations in Irkutsk Region are not designed for overnight detention; in Nizhny Novgorod Region, rooms for detainees are equipped with wooden benches 40 to 70 cm wide, which serve as beds for persons detained overnight; mattresses are generally unavailable, and bedding is rarely available. This problem has become particularly relevant in recent years due to a growing number of arrests of peaceful protesters, often followed by their detention at police stations for more than three hours. The lack of proper detention conditions at police stations has repeatedly been challenged in Russian courts, and a few cases have been taken to the Court. In particular, the cases of Irina Leonidovna Kalmykova, Yelena Gennadyevna Koroleva, Mariya Aleksandrovna Ryabikova and Anastasiya Mikhaylovna Sheveleva (application no.  56516/15 lodged on 6 November 2015) are currently at the communication stage and have been added to Kapustin v. Russia (application no. 36801/09) and 18 other applications[4].

Separating smokers from non-smokers remains a serious problem, according to human rights defenders and PMC members in Krasnoyarsk Territory and Kaliningrad, Nizhny Novgorod, Sverdlovsk, Kaluga and Irkutsk Regions.

Sanitary conditions

Despite media reports from FSIN officials about having completely solved the problem of partitions for separating toilets from the living space – and despite a genuine investment of effort and resources in the solution – the actual situation is somewhat different from the reports. According to FSIN Order no. 512, there must be just one partition one meter high; the low partition provides shielding only from one side, leaving the rest uncovered. Most toilets are equipped with steel Genoa bowls mounted on a platform raised by one or two steps. Taking into account the height of the platform and the one-meter partition, the person using the toilet is virtually in full view. Inmates often hang sheets or rags on ropes to shield the toilet. Very common are odour problems resulting from poorly functioning sewerage systems, irregular water supply and obsolete and worn-out sanitary equipment.

Medical care

Generally, PMC members in Irkutsk, Kaluga, Kaliningrad, Nizhny Novgorod and Sverdlovsk Regions and Krasnoyarsk Territory report problems with the availability of medical personnel and access to medical assistance. Prisoners have to make appointments repeatedly and wait for long periods to be seen by a medic; medicines are in short supply, as well as devices such as blood glucose and blood pressure monitors, and in some places, e.g., in Sverdlovsk and Nizhny Novgorod Regions, inmates cannot access treatment for HIV and TB. Prisoners with mobility problems are not always provided with wheelchairs and other mobility support devices (IK-6 in Irkutsk Region, Krasnoyarsk Territory).

Access to lawyers

Correctional facility 1 (IK-1) of Yaroslav region, entrance to the transfer reception room. Photo: Irina Biryukova, barrister working with the Public Verdict, summer 2017

Problems with access to lawyers also persist. In particular, denials of access to lawyers and defenders to their clients in SIZOs are common; lawyers have complained about having to wait in line to see their clients because the facility does not have enough space to accommodate all visits. Prisoners who have been beaten in detention face particular difficulties with access to lawyers and defenders. Notably, although the Court indicated interim measures in Vakhapov and others v. Russia (application no. 31236/17) and explicitly urged Russia to ensure that the prisoners have unhindered access to their lawyers, the latter’s repeated attempts to meet with their clients have been unsuccessful.

The new procedure for challenging inappropriate conditions of detention

In April 2017, the Russian Federation submitted yet another Action Plan for the execution of the Court’s pilot judgment in Ananyev and others vs. Russia and the judgments in the Kalashnikov group of cases. In particular, this document describes in detail a new procedure for challenging inappropriate conditions of detention in remand prisons pending trial and in penitentiary institutions by relying on provisions of the Code of Administrative Procedure adopted in 2015 (Federal Law No. 21-FZ of 8 March 2015, hereinafter CAP). Indeed, the procedure established by CAP has certain advantages over that available under the Code of Civil Procedure (hereinafter CCP). Notably, the CAP provisions strengthen the role of courts, introduce instruments for holding the authorities responsible (such as fines for failure to appear in court, possibility of being brought to court, etc.), and include provisional measures.

However, the new procedure under the CAP fails to resolve the problem that conditions of detention may be found inadequate only if the actions of the relevant authority or official are proven unlawful, nor does it permit simultaneous examination of complaints about the conditions of detention and related claims for compensation, as indicated by the Court in its pilot judgment.

In order to use CAP provisions for challenging the conditions of detention, detainees need to know that in the CAP terminology, inadequate conditions are understood as actions or inaction (omission) of a State authority or official, and that appealing against the conditions of detention means challenging certain acts or inaction of authorities responsible for ensuring proper conditions of detention. Individuals cannot make a claim for compensation under the CAP. In practice, this means that a detainee first needs to prove under the CAP the unlawfulness of an authority’s action or inaction leading to inadequate detention conditions, and only then make a claim for compensation of pecuniary and/or non-pecuniary damage under a different procedure stipulated by the CCP.

Notably, the State, in order to comply with the Court’s judgment concerning general measures, needs not only to develop and adopt relevant procedures and follow them in practice but also to demonstrate that adopted procedures are effective in practice. As regards the procedure for using the CAP to challenge inadequate conditions of detention in remand prisons and penitentiary facilities, Russia's Action Plan fails to provide any such proof or any information as to how the State plans to monitor and evaluate the effectiveness of this procedure as a remedy for inadequate conditions of detention.

Moreover, by adopting this new procedure, the State failed to consider important aspects that potentially create significant barriers in applying the CAP. Based on what we know from the experience of human rights organizations and from regular engagement with both lawyers and inmates, at least two key barriers to applying CAP provisions for challenging inadequate conditions of detention are foreseen.

First, the CAP has established a three-month timeline for filing a complaint about actions (omissions) of authorities of officials. In other words, an administrative complaint must be filed with a domestic court within three months following the action (inaction) in question. However, it is well known that many detainees take longer than three months to seek help. This is due to a number of reasons. In particular, an individual may need extra time to decide to challenge the actions of officials in a situation where he or she is under control of such officials, restricted in his/her freedom and vulnerable to pressure. Detainees’ correspondence is subject to censorship, and letters may get delayed in the mail. Therefore, detainee awareness of the three-month deadline is essential.

Another important limitation of the CAP procedure is the requirement that the plaintiff’s representative must have confirmed legal education and training. Plaintiffs in this category of cases are not provided with free legal aid from the State. For detainees with limited financial means, finding a lawyer to represent them can be a major problem.

Conclusion

An important component of introducing any new procedure is explaining to potential users how it works. According to information provided by lawyers, inmates and PMC members, no meaningful effort has been made to offer inmates a comprehensive and adequate explanation of the new CAP procedure. Moreover, no advice has been provided to detainees – regular suppliers of complaints to the Court about inadequate conditions of detention – that the new administrative procedure can be used, inter alia, for appealing against conditions of detention. This means that the respondent State has failed so far to comply with the key objective of creating an effective domestic remedy capable of addressing poor conditions of detention in the domestic jurisdiction and thus reducing the flow of recurrent complaints to the Court.

[1] Statistics of the European Court of Human Rights “Violation by Article and by States (1959-2016)

[2] Interim report/Plan of action on execution of pilot judgment Ananyev and others v. Russia; Russian NGO Shadow Report on the Observance of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the Russian Federation for the period from 2006 to 2012

[3] Submission of the Public Verdict Foundation to the Committee of Ministers in the cases of Kalashnikov and Ananyev and Others v Russian Federation, (Appl. Nos. 47095/99, 42525/07), 16 June 2017 

[4] Vladimir Yakovlevich Kapustin against Russian Federation and 18 other applications, Appl. no. 36801/09, communicated by the Court on 30 June 2017