FIRST SECTION
Application no. 30692/11
Vladimir Grigoryevch OSTANIN against Russia
and 7 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Russian nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be
summarised as follows.
1. Application no 30692/11 lodged on 14 April 2011 by Vladimir
Grigoryevch OSTANIN who was born on 16 November 1963 and lived
until his arrest in the town of Berezniki, Perm Region. He is now serving his
sentence in a correctional colony in the Irkutsk Region.
On 11 October 2007 the applicant was arrested on suspicion of
manslaughter of which he was subsequently found guilty. The applicant was
sentenced to seven years’ imprisonment.
On a number of occasions, from 16 November to 16 December 2007,
from 14 to 18 December 2007, from 26 December 2007 to 6 January 2008,
from 26 March to 8 April 2008, from 12 to 18 January 2009 the applicant
was detained in a detention ward of the Berezniki Town police station
(hereinafter – the ward). He provided the following description of the
conditions of his detention in the ward. Cells were on the underground floor
of the ward, having no window. They were dimply lit by small electric
bulbs. There was no artificial ventilation system. Thus it was always stuffy
and damp. The cells were overcrowded, with inmates having had to take
turns to sleep. There was no furniture in the cells: tables, benches, and so
on. The cells were dirty and infested. The lavatory did not function properly
2
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
with an unpleasant odour lingering in the cells. The cells were not cleaned.
No disinfectants were provided. Bedding was swamped with bedbugs.
In April 2008 the applicant lodged a complaint with the Berezniki Town
Prosecutor. In a letter on 21 May 2008 the prosecutor confirmed that the
applicant had been detained in the “improper” conditions which resulted
from the lack of funds.
On 2 August 2010 the applicant lodged an action against the Ministry of
Finance having sought compensation for damage sustained as a result of his
detention in the ward. He also sought leave to appear.
On 12 October 2010 the Berezniki Town Court held a hearing. Having
noted the applicant’s absence, it stated that he had been properly informed
of the date and place of the hearing and was not present because he was
serving his sentence. The Town Court further studied the response from the
administration of the ward and the results of the prosecutor’s inquiry into
the applicant’s complaint. Having noted that the applicant’s complaints of
overcrowding and poor conditions of detention, such as absence of daily
walks, lack of privacy, inadequate sanitary conditions, and so on, had not
been disputed by the respondent and had been confirmed by the prosecutor,
the Town Court awarded the applicant 20,000 Russian roubles (RUB)
(approximately 500 euros). The court stressed that it had taken into account
the circumstances of the case, in particular the fact that the applicant had
been detained in the ward in view of his having been accused of a criminal
offence of which he had subsequently been convicted; the level of his
physical (presence of bedbugs, a dilapidated sewage system in the cells, the
absence of daily outside walks, the overcrowding in the cells, the lack of
individual sleeping place, and the applicant having fallen ill in the ward)
and moral (lack of privacy, in particular when he had had to use a lavatory)
sufferings; the aggregated length of his detention (59 days) in the ward and
the requirements of reasonableness and justice.
The applicant appealed, having also complained about the Town Court’s
failure to ensure his presence at the hearing.
On 9 February 2011 the Perm Regional Court upheld the judgment,
having fully endorsed the Town Court’s reasoning. The applicant was not
brought to the hearing, while the prosecutor, who supported the Town
Court’s findings, attended and made oral submissions.
On 25 February 2011 the applicant sent a letter to the Berezniki Town
Court seeking information about the appeal hearing. On 5 April 2011 he
was served with a copy of the Regional Court’s judgment and with an
execution writ.
On 14 June 2011 the applicant sent the writ for execution of the
judgment to the Ministry of Finance. According to the applicant, the
judgment remains unenforced.
2. Application no 40232/11 lodged on 25 May 2011 by Petr Petrovich
MAKHOV who was born on 7 December 1985 and lived until his arrest in
the town of Kandalaksha, Murmansk Region. He is now serving his
sentence in the correctional colony in Murmansk.
The applicant submitted that between 1 April 2005 and 27 September
2007 he had been detained in the temporary detention facility in the town of
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
3
Apatity. He argued that the conditions of his detention had been appalling
with his having been detained in severely overcrowded, poorly lit, dirty and
damp cells, having had no individual sleeping place and no privacy as the
lavatory pan had not been separated from the living area. He also stressed
that he had not been provided with adequate medical assistance, in
particular the dental care.
The applicant further noted that on more than thirty occasions during his
pre-trial detention he had been transported from the detention facility to take
part in investigative actions. The applicant was taken to another town, by
train, at night. He was unable to sleep and was not provided with food. He
was usually taken to a collective cell at 7.00 p.m. where he remained until
2 o’clock in the morning. Then he was subjected to a body search and at
3.00 a.m. taken to the train station. At 3.30 a.m. inmates, including the
applicant, were placed in a train which reached the destination point three
hours later. The train was not equipped with sleeping places. On arrival to
the train station inmates were taken to a police ward where they were again
subjected to a search until 7.00 a.m. Then a day of his participating in
various investigative steps followed with the applicant having only been
able to go to sleep at 10.00 p.m. on his return to the detention facility.
Inmates were only given food at 2.00 p.m., having thus being left hungry for
twenty hours.
In 2010 the applicant lodged an action against the administration of the
detention facility, the Federal Service for Execution of Sentences and the
Ministry of Finance, having sought compensation for the sufferings caused
by the conditions of his detention and transport, as described above.
On 14 January 2011 the Apatity Town Court, in the applicant’s absence
and in the presence of the representatives of the respondents, dismissed the
applicant’s claim in full, having found no evidence in its support. The Town
Court noted that the applicant had been transported and detained in the
conditions in full compliance with the domestic legal norms. Having
addressed the issue of the applicant t’s absence from the hearing, the court
noted that the applicant had not been summoned as he was serving his
sentence of imprisonment.
The judgment was upheld on appeal by the Murmansk Regional Court.
The appeal hearing was held in the applicant’s absence. Having addressed
his absence from the hearing before the Town Court, the Regional Court
noted that the applicant had been informed of the time and date of the
hearing. However, the Russian law did not provide him with the right to
take part personally in the court hearing in a civil case as he was serving the
sentence of imprisonment. The court also noted that the applicant could not
be provided with legal assistance as there is also no such right. The
Regional Court used the same set of arguments while explaining the
applicant’s absence from the appeal hearing.
3. Application no 60052/11 lodged on 2 September 2011 by Oleg
Aleksandrovich GORDEYEV who was born on 17 June 1980 and lived
before his arrest in the town of Troitsk. He is serving his sentence in a
correctional colony in Chelyabinsk.
4
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
On 1 November 2005 the applicant was placed in a detention ward of the
Troitsk Town police department. He was kept in cell no. 15. He remained in
that ward until 18 November 2005. According to the applicant, the cell was
no more than a concrete box, with the concrete floor, walls and ceiling. The
walls in the cell were coated with “shuba”, a sort of abrasive concrete
lining. According to the floor plans provided by the applicant, cell no. 15
measured approximately 7 square metres. Extracts from the registration logs
showed that the cells housed from 2 to 4 inmates when the applicant was
detained there. On eight days the applicant had to share the cell with three
inmates, for five more days he was kept there with two other inmates and
the remaining period he was detained with another person. The applicant
was not provided with the bedding. He did not have an individual sleeping
place as the cell was overcrowded. It was extremely cold in the cell as the
heating system did not function properly. Windows were covered with
metal plates with small holes in them which did not give access to fresh air
and light. A lavatory pan was installed forty centimetres above the floor and
no more than 1.2 metre from the living area from which it was not
separated. The applicant was not given an opportunity to take a shower
during the entire period of his detention in the ward. The food was
inadequate and scarce. Sanitary conditions were appalling. Inmates could
not take daily hour-long walks outside as the ward did not have a recreation
yard.
As follows from a letter of 5 December 2007 by the head of the Troitsk
Town Police Department, the ward had 17 cells of which only three, where
women and minors were detained, were equipped with bunks. The
remaining cells had “common plank bed” which corresponded to the norms
of 1983 when the ward had been built. The head acknowledged that the
ward required serious reconstruction works but there were no funds to carry
them out.
Letters from the Troitsk Town prosecutor’s office also show that the
applicant’s submissions related to the conditions of his detention were
correct.
In 2011 the applicant lodged an action against the police department
complaining about his conditions of detention in the ward. He also sought
leave to attend.
On 8 February 2011 the Troitsk Town Court dismissed the action. While
having noted that the major part of the applicant’s description of the
conditions of his detention was true, it considered that he was detained in
“unacceptable” conditions for a very short period. The applicant was not
brought to the hearing. The respondents attended.
On 14 April 2011 the Chelyabinsk Regional Court, having considered the
applicant’s appeal, dismissed it and upheld the Town Court’s findings. The
applicant was also absent from the appeal hearing.
4. Application no 76438/11 lodged on 18 November 2011 by Andrey
Igorevich RESIN who was born on 29 July 1974 and is serving his sentence
in the correctional colony in the town of Verkhneuralsk, Chelyabinsk
Region. He is represented by Mr A. Molostov, a lawyer practicing in the
Chelyabinsk Region.
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
5
Under a judgment of 7 February 2000 the applicant is serving his
life-imprisonment sentence.
On an investigator’s order the applicant was transferred to the temporary
detention facility in Khabarovsk to take part in investigative actions in
another criminal case. He remained in that facility from 15 December 2008
to 25 March 2009. He gave the usual description of the conditions of
detention featuring overcrowding, poor sanitary conditions, lack of access to
sufficient lighting and fresh air, and so on.
The applicant lodged an action seeking compensation for damage.
On 25 April 2011 the Kirovskiy District Court of Khabarovsk awarded
the applicant 3,000 Russian roubles (RUB) (approximately 80 euros),
having accepted a part of his claims concerning the lack of access to fresh
air and lack of proper sleeping place, and dismissed the remaining part of
the claims, having noted that the remaining features of the conditions of his
detention corresponded to legal requirements.
The applicant appealed, having also argued that the District Court had
failed to ensure his presence at the hearing, while having heard the
responding party in person.
On 3 August 2011 the Khabarovsk Regional Court upheld the judgment
of 25 April 2005, having found no flaws in the District Court’s reasoning
and no violation of the applicant’s procedural rights during the examination
before the first instance. The applicant was also absent from the appeal
hearing.
5. Application no 14919/12 lodged on 23 January 2012 by Yuriy
Aleksandrovich LEBETSKIY who was born on 1 March 1986 and lived
before his arrest in the village of Tsentralniy, Perm Region. He is serving
his sentence in the correctional colony in the village of Kharp, Tyumen
Region.
From 6 to 18 June 2007, from 22 to 30 June 2007, from 22 to 25 July
2007, and from 29 September to 12 October 2007 the applicant was
detained in a detention ward of the Chusovskoy District police department,
having stayed in cells nos. 6, 9, 2 and 13. Cell no. 6 measured 9 square
metres and housed from 14 to 16 inmates; cell no. 9 was six metres long and
three metres wide and accommodated from 20 to 25 inmates; cell no. 2
measured 9 square metres and the applicant was kept there alone and cell
no. 13 was of 18 square metres and housed from 25 to 30 detainees. The
cells did not have bunks. Inmates had to share one wooden plank bed and
took turns to sleep as there were so many of them in the cells. Windows
were covered with metal sheets giving no access to fresh air and light. The
majority of the inmate population smoked which was particularly difficult
on the applicant, a non-smoker. The cells were dimly lit with a small bulb of
40 watts. The walls in the cell were coated with “shuba”, a sort of abrasive
concrete lining. The cells were dirty and infested. The lavatory pan was
installed on a small pedestal and was not separated from the living area, thus
having offered no privacy. Inmates were not provided with bedding. Food
was scarce and inadequate. The ward did not have a recreation yard.
Inmates were unable to take a daily hour-long walk.
6
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
On 4 September 2007 the applicant was convicted of aggravated murder
and robbery and sentenced to life imprisonment. The judgment became final
on 30 January 2008 when the Supreme Court upheld it on appeal.
In November 2010 the applicant lodged a tort action against the police
department and the Ministry of Finance, complaining about his conditions
of detention in the ward.
Having considered the applicant’s leave to attend, the Chusovskoy
District Court issued a judicial order asking the Priuralksiy District Court in
the Yamalo-Nenetskiy Region to conduct an interview with the applicant.
The order was complied with on 5 July 2011 with the Priuralskiy District
Court having, in detailed, recorded an interview with the applicant and
provided the record to the Chusovskoy District Court. The Priuralskiy
District Court also heard inmates who had been detained together with the
applicant in the ward and who had supported his claims.
On 1 August 2011 the Chusovskoy District Court, having found that the
major part of the applicant’s submissions pertaining to the conditions of his
detention in the ward (including the overcrowding, lack of daily walks,
absence of bedding, absence of working ventilation system, lack of medical
assistance and so on) was supported by evidence, awarded him
10,000 Russian roubles (RUB) (approximately 250 euros).
The applicant appealed, having also complained that the Chusovskoy
District Court had not brought him to the hearing but organised his
interview before another court.
On 5 December 2011 the Perm Regional Court upheld the judgment on
appeal. The appeal court held the hearing in the applicant’s absence and did
not address the argument pertaining to his absence from the hearing before
the Chusovskoy District Court.
6. Application no 19929/12 lodged on 1 February 2012 by Dmitriy
Aleksandrovich GROMOVOY who was born on 11 October 1983 and lived
until his arrest in the town of Snezhinsk, Chelyabinsk Region. He is serving
his sentence in the correctional colony in the town of Kopeysk, Chelyabinsk
Region.
On 30 October 2009 the applicant was arrested. Six days later he was
taken to temporary detention facility no. IZ-74/3 in Chelyabinsk. On
26 August 2010 the applicant was convicted and sentenced to
imprisonment. With that judgment having been quashed on 10 December
2010, a new round of trial proceedings commenced. The applicant was
again convicted on 25 March 2011.
On 20 January 2011 the applicant was re-admitted to facility no. IZ-74/3
where he remained until 15 April 2011. According to the applicant he was
detained in a cell of no more than four square metres. The cell was equipped
with a bunk, a lavatory pan and a sink, the later two installed in the corner
of the cell. The cell was lit from 6 a.m. to 10 p.m. with a bulb of 100 watts.
The cell did not have a table or bench to sit on. There was no artificial
ventilation system and no heating device. It was extremely cold in the cell
with the applicant having been forced to remain in his winter clothes all the
time, including at night. The applicant was not given hot water and could
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
7
not boil it himself as there was no electric socket in the cell. Having
remained in the very limited personal space and having been unable to
exercise, the applicant started experiencing muscle pain in the legs and
arms.
The applicant lodged a tort action against the facility administration,
having also sought leave to appear.
On 30 May 2011, having noted that the applicant’s presence at the
hearing could not be ensured, as the Russian civil procedural law did not
provide for a possibility to transport a convict to a court hearing in a civil
case, the Kalininskiy District Court of Chelyabinsk dismissed the action.
The District Court reasoned that the conditions of the applicant’s detention
fully complied with the legal requirements.
The applicant appealed, having also complained of his absence in court.
On 15 August 2011 the Chelyabinsk Regional Court upheld the judgment
on appeal, having been convinced by the District Court’s findings. At the
same time the appeal court, which also held the hearing in the applicant’s
absence, noted that by virtue of the Russian procedural norms a court could
only ensure an inmate’s presence in a criminal case. No such possibility was
envisaged for civil proceedings.
7. Application no 42389/12 lodged on 21 May 2012 by Sergey
Valeryevich MARTIROSYAN who was born on 2 September 1982 and
lived until his arrest in the town of Glazov, Udmurtiya Republic. He is
serving his sentence in the correctional colony in the village of Yagul,
Udmurtiya Republic.
On 8 February 2006 the Glazov Town Court discontinued criminal
proceedings against the applicant on the charges of aggravated robbery and
theft of documents because the prosecution had refused to press charges.
That decision became final on 1 June 2006 when it was upheld on appeal.
In 2010 the applicant, who was serving sentence at that time for other
crimes of which he had been convicted, lodged an action against the
Ministry of Finance, seeking compensation for unlawful institution of the
criminal proceedings in view of the decision of 8 February 2006. He also
sought leave to appear.
On 22 September 2011 the Pervomayskiy District Court of Izhevsk
dismissed the action of the applicant, having examined it in the latter’s
absence. The District Court found no evidence that the criminal proceedings
had been instituted unlawfully.
As follows from letters sent to the applicant by the acting President of the
Pervomayskiy District Court in response of the complaints concerning the
refusal to transport him to the hearings, the District Court did not see any
necessity to examine the action in the applicant’s presence.
On 16 January 2012 the Supreme Court of the Udmurtiya Republic
dismissed the applicant’s appeal, having seen no reasons to doubt the
District Court’s assessment of the case. Having addressed the issue of the
applicant’s absence both before the first-instance and the appeal courts, the
Supreme Court concluded that the Russian Code of Civil Procedure did not
provide for a right of an inmate to attend a hearing in a civil case. The
respondent party attended every hearing.
8
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
8. Application no 57043/12 lodged on 20 March 2012 by Andrey
Igorevich RESIN who was born on 29 July 1974 and is serving his sentence
in the correctional colony in the town of Verkhneuralsk, Chelyabinsk
Region. He is represented by Mr A. Molostov, a lawyer practicing in the
Chelyabinsk Region.
Under a judgment of 7 February 2000 the applicant is serving his
life-imprisonment sentence.
On an investigator’s order the applicant was transferred from the
correctional colony in Irkutsk to Khabarovsk to take part in investigative
actions in another criminal case. He was transported by train, in a special
carriage for inmates. In particular, the trips took place from 12 to 15 January
2008, from 15 to 18 March 2008, from 12 to 15 December 2008 and from
25 to 29 March 2009.
The applicant provided the following description of the conditions of his
transport. The carriage compartment measured 2 square metres. Every two
hours guards carried out the checks of the compartments, having knocked at
the walls with a large wooden hammer. Each compartment was checked
from 10 to 15 minutes. Inmates were thus left without a sleep in the proper
sense of that word for the entire time of the trip. The compartment was lit
day and night with a bulb and the convoy service refused to turn off light at
night. There was no ventilation system in the carriage and the cigarette
smoke lingered in it as inmates were allowed to smoke inside. The
applicant, a non-smoker, had to endure additional sufferings. The
compartments did not have windows. Inmates, including the applicant, were
not provided with food during the transport. He was lucky if he could take
food from relatives.
In 2011 the applicant lodged an action against the service for execution
of sentences and the Ministry of Finance, seeking compensation for damage
caused by the conditions of his transport. He also sought leave to appear. In
alternative, the applicant informed the court that he was ready to waive his
right for personal presence if the court is to appoint a lawyer to represent his
interests.
Having received the applicant’s lawsuit, the Kuybyshevskiy District
Court of Irkutsk issued a judicial order, having asking the local court at the
place of the applicant’s detention to conduct an interview with him.
With the order pertaining to the applicant’s interview having been
complied with, on 5 October 2011 the Kuybyshevskiy District Court
dismissed the claim having found that the majority of the aspects of the
conditions of the applicant’s transport corresponded to the domestic legal
requirements. The court also did not find any evidence in support of the
applicant’s claim that he had not been provided with food on his trips.
The applicant appealed, having also insisted that the District Court had
violated the “equality of arms” principle, given that he had not been given
an opportunity to effectively participate in the hearing, to interrogate
witnesses, to examine material evidence and to make oral submissions,
having been merely questioned at the place of his detention on the basis of a
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
9
copy of his lawsuit. The applicant insisted on his appearing before the
appeal court.
As follows from the applicant’s submissions, sometime in 2012 the
appeal court upheld the judgment of 5 October 2011, having disregarded his
request for presence.
B. Relevant domestic law
The relevant provisions of domestic law on participation of inmates in
civil proceedings are set out in the judgment of Shilbergs v. Russia,
no. 20075/03, §§ 53-56, 17 December 2009.
COMPLAINTS
The applicants complained under Article 6 of the Convention that
Russian courts had failed to ensure their presence in civil proceedings. The
majority of the applicants also complained under Article 3 of the
Convention either about the conditions of their detention in pre-trial
detention facilities or the conditions of their transport.
COMMON QUESTIONS
1. Having regard to the fact that the applicant was not brought to the
first-instance and appeal hearings in civil proceedings, do the circumstances
of the case disclose an infringement of his right to a fair hearing as
guaranteed by Article 6 § 1 of the Convention? In particular, was the
applicant afforded an opportunity to attend the above mentioned hearings?
2. Having regard to the fact that the applicant’s adversaries were present at
the above mentioned hearings and made submissions to the courts, has there
been an infringement of the applicant’s right to equality of arms enshrined
in Article 6 § 1 of the Convention?
CASE SPECIFIC QUESTIONS
Applications nos. 14919/12 and 57043/12:
Having regard to the fact that the first-instance court which heard the
applicant’s case authorised an interview with the applicant at the place of
his detention, the Government are asked to produce a copy of the judicial
order authorising the interview and a typed copy of the interview record.
Applications nos. 30692/11, 40232/11, 60052/11, 76438/11 and 14919/12,
19929/12
10
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
Has there been a violation of Article 3 of the Convention on account of
the applicant’s conditions of detention in temporary detention facility or
police ward, where relevant? The Government are requested to produce
documentary evidence, including population registers, floor plans, day
planning, colour photographs of the sanitary facilities, etc., as well as
reports from supervising prosecutors concerning the conditions of detention
in that facility.
Applications nos. 40232/11 and 57043/12
Has there been a violation of Article 3 of the Convention on account of
the applicant’s conditions of transport? The Government are asked to
produce documentary evidence, including train carriage compartment plans,
food registers, train schedule and movement plan, colour photographs of the
train carriage and compartments, etc. What are the domestic legal norms
regulating check-up procedures during the transport of detainees?
OSTANIN v. RUSSIA AND OTHER APPLICATIONS – STATEMENT OF FACTS
AND QUESTIONS
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
1.
30692/11
14/04/2011
Vladimir Grigoryevch OSTANIN
16/11/1963
2.
40232/11
25/05/2011
Petr Petrovich MAKHOV
07/12/1985
3.
60052/11
02/09/2011
Oleg Aleksandrovich GORDEYEV
17/06/1980
4.
76438/11
18/11/2011
Andrey Igorevich RESIN
29/07/1974
5.
14919/12
23/01/2012
Yuriy Aleksandrovich LEBETSKIY
01/03/1986
6.
19929/12
01/02/2012
Dmitriy Aleksandrovich GROMOVOY
11/10/1983
7.
42389/12
21/05/2012
Sergey Valeryevich MARTIROSYAN
02/09/1982
8.
57043/12
20/03/2012
Andrey Igorevich RESIN
29/07/1974
11