Transportation of prisoners in metal chambers in trucks without water and food constitutes degrading treatment. Systemic problem.
JUDGMENT
Tomov and others v. Russia 09.04.2019 (18255/10, 63058/10, 10270/11, 73227/11, 56201/13 and 41234/16)
SUMMARY
Transfer of prisoners. Poor detention conditions. Complaints of seven Russian prisoners. The Court found that the violations were mainly caused by the adherence to obsolete standards for the transfer of detainees (transportation to solid metal wards in prison trucks, a train journey without sleeping areas, lack of access to drinking water and food). Infringement of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR as regards the conditions for the transport of six of the applicants. Infringement of Article 13 (right to an effective remedy) in conjunction with Article 3 in respect of the complaint of three of the applicants that there were no effective remedies in domestic law to challenge the conditions for their transfer.
Infringement of Article 6 § 1 (right to be heard) for an applicant who has not been given the opportunity to apply to the court for compensation due to degrading conditions of detention. It also considered that the Russian State had failed to comply with the obligations arising from Article 38 (obligation to provide the necessary means to deal with the case), because it refused to implement the measures requested by the Court. In accordance with Article 46 (implementation), the Court highlighted measures to improve the structural problem and gave Russia a 18-month deadline from the date on which the decision was rendered irreversible in order to avoid such violations in the future.
PROVISIONS
Article 3
Article 6
Article 13
Article 38
Article 46
PRINCIPAL FACTS
The applicants, Aleksey Tomov, Yuliya Punegova, Natalya Kostromina, Yevgeniy Rakov, Dmitriy
Vasilyev, Nikolay Roshka, Nikita Barinov are Russian nationals who were born in 1966, 1985, 1978,
1969, 1958, 1965, and 1990 respectively.
While serving sentences Mr Tomov, Mr Vasilyev, Mr Roshka and Mr Barinov were transported over
long distances by both road and rail. They were taken to remote detention facilities which were
located 900 to 2,200 kilometeres away. The railway leg of their journeys included at least one night’s
stay, meaning they were deprived of a night’s rest because prisoners outnumbered sleeping places.
Three of the applicants who underwent the longest journey were only allowed two toilet visits and three pots of water per day and, at one point, were left for about 15 hours at sub-zero temperatures without heating while the train was stationary.
When transferred by prison van during their detention, Ms Punegova and Ms Kostromina had to
travel in a single-prisoner cubicle, known as a “stakan”, which is a solid metal box measuring 65 cm
by 50 cm with one seat inside. They were confined to that isolation box because they were women:
under the relevant regulations, certain categories of prisoners classified as vulnerable, such as
women prisoners or former police officers, had to be transported separately.
Ms Punegova complained that warm air from the heating unit in the central aisle of the van did not
reach her cubicle, which was sealed off by a solid metal door, and that she had thus suffered badly
from the cold in winter months.
Ms Kostromina who suffers from obesity caused by diabetes had to take at least seven one- to twohour trips in a “stakan”cubicle which she shared with another woman prisoner. Each trip lasted one
to two hours.
In February 2011 Mr Rakov was transferred to Vladivostok, 200 kilometres away from where he was
serving his sentence. He complained to various authorities and the courts about the conditions on
that trip but the courts rejected his claims without hearing Mr Rakov or his representative.
Mr Rakov, as well as two of the other applicants, also unsuccessfully challenged the guidelines set
down by the Ministry of Justice and the Ministry of the Interior for transporting prisoners. The
Supreme Court of Russia rejected their complaints that the maximum number of detainees allowed
in railway carriages was too high and led to overcrowding, finding in particular that such conditions
conformed to domestic regulations and did not result in actual physical injuries.
THE DECISION OF THE COURT
The Court held that Mr Rakov’s complaints under Articles 3 and 13 had been submitted more than six months after the last day of his transfer. As the subsequent judicial proceedings were not considered an effective remedy in the Russian legal system, those complaints were belated and inadmissible.
Article 3 (inhuman and degrading transportation conditions)
The Court took a comprehensive approach to cases concerning prisoner transportation, and focused
on the actual conditions of transfer and their effect on the applicants.
It pointed out that a strong presumption of a violation of the Convention would arise when
detainees were transported in vans with less than 0.5 square metres of space per person. It was
irrelevant whether such cramped conditions were the result of faulty design or a guard’s decision to
put too many detainees in one vehicle. Such a presumption could only be rebutted in the case of
short or occasional transfers.
Sleep deprivation, inadequate heating or ventilation, low ceilings forcing prisoners to stoop,
especially in single-prisoner cubicles, and restricted access to water, food and toilets during long
trips would constitute aggravating factors.
Bearing that approach in mind, the Court examined the remaining six applicants’ individual
situations.
It found that Mr Tomov, Mr Vasilyev, Mr Roshka and Mr Barinov had been deprived of a night’s rest
on one or more consecutive nights during their journeys by rail because of insufficient sleeping
places, which in itself had amounted to inhuman and degrading treatment. Their plight had been
aggravated by being locked overnight inside an unheated compartment at sub-zero temperatures,
having restricted access to water and toilets, and by being transported in overcrowded vans
immediately before or after their train trips.
It also considered that the two women applicants, Ms Punegova and Ms Kostromina, had had to
endure particularly harsh transport conditions. The escorting officers had followed the regulations
requiring separation of the sexes to the letter when putting them in the “stakan” cubicle, but that
had been in disregard for their well-being as well as respect for human dignity.
Ms Kostromina, who suffered from obesity, had thus had to routinely spend up to two hours in the
confined space of a “stakan”, with another woman, in the hot summer months without ventilation.
Ms Punegova had been subjected to as many as 10 transfers in a “stakan” with no heating in the low
temperatures of the winter months when her trial had taken place.
The Court found, on the other hand, that Ms Punegova had not been transferred many times during
the pre-trial period of her detention and the transfers had sometimes been as short as three
minutes, which rebutted the presumption of a violation of Article 3 due to restricted personal space.
No officials had apparently sought to cause the applicants hardship or suffering. However, the actual
conditions of their transfer had subjected them to distress of an intensity exceeding the unavoidable
level of suffering inherent in detention, which had undermined their human dignity, and had to be
characterised as “inhuman and degrading”, in violation of Article 3. That violation had chiefly
stemmed from the domestic regulations which had left no room for an individual assessment of each
applicant’s situation.
Article 13 (lack of effective remedies)
The Court found that there were no effective remedies offering a reasonable prospect of success in
the Russian legal system for complaints concerning conditions of prisoner transportation. It was not
therefore prepared to change its position, as expressed in many previous cases, where it had
examined the remedies suggested by the Government and had found them to be lacking.
There had therefore been a violation of Article 13 in conjunction with Article 3, in respect of
Mr Tomov, Mr Roshka and Mr Barinov.
Article 6 (lack of opportunity to present claim for compensation)
In Mr Rakov’s case the courts, whether at first instance or on appeal, had not assessed whether the
nature of his claim had called for his testimony in person. Nor did they ascertain why his lawyer
could not attend or consider alternative arrangements to hear Mr Rakov, such as via a video-link. As
a result, the courts had only heard submissions from the prison authorities. Mr Rakov had therefore
been denied an effective opportunity to state his case, in breach of the principle of a fair trial.
Article 38 (refusal to submit documents requested by the Court)
When giving notice of the first application (no. 18255/10), brought by Mr Tomov and which was at
the origin of the present case, the Court requested that the Russian Government provide a copy of
the official standards for transporting prisoners.
Instead, they had submitted a unilateral declaration acknowledging a violation of the European
Convention and had argued that there was therefore no need to provide the documents. They have
not submitted any such documentation since or given any explanation for their failure to do so,
despite the Court having rejected the unilateral declaration and reiterating its request.
The Court therefore considered that the Russian State had failed to comply with its obligations
under Article 38 owing to a failure to submit the evidence requested of it.
Article 46 (enforcement)
The Court’s findings in this case, as well as in 50 previous ones and a continuing flow of similar
applications, currently amounting to more than 680, illustrated that there was a recurrent structural
problem in Russia.
The Court recognised that the problem was complex, involving factors such as the remoteness of
many penal facilities, which had been built far from major cities under the former regime, an ageing
rolling stock and exceedingly restrictive regulations and standards.
It thus outlined measures for improving the conditions of prisoner transportation.
First, the authorities had to change their practice of allocating prisoners, such as some of the
applicants in this case, to remote facilities. They should be placed as close to their homes as possible
to save them from the hardships of a long railway journey and reduce the number of prisoners
travelling that way.
Second, the current thorough review of the regulatory framework on prisoner transportation had to
continue so as to guarantee sufficient space per person in prison vans and railway carriages; to avoid
the use of stakan-type cubicles; to remove installations that prevent prisoners from standing up; to
ensure adequate sleeping arrangements for prisoners on longer journeys; and to provide sufficient
access to toilets, drinking water and food. Moreover, the regulations had to provide for individual
assessments of prisoners with special needs.
The Court also identified a structural problem concerning the availability of effective remedies for
complaints about conditions of prisoner transportation.
Given the large number of people affected and the urgent need to grant them speedy and
appropriate redress at national level, the Court held that the Russian State was to set up, without
delay and no later than 18 months from this judgment becoming final, a combination of effective
domestic remedies to prevent similar violations and to provide adequate compensation.
Lastly, it held that, pending the implementation of such domestic remedies, it would adjourn its
processing of similar cases, also for a maximum of 18 months from the judgment becoming final.
Article 41 (just satisfaction)
The Court held that Russia was to pay, in respect of non-pecuniary damage, 5,000 euros (EUR) each
to Mr Tomov and Ms Kostromina, EUR 3,500 each to Mr Roshka and Mr Barinov and EUR 1,500 each
to Ms Punegova and Mr Vasilyev. It awarded EUR 10,000 to their representative Mr Mezak in
respect of costs and expenses(echrcaselaw.com editing).
