FOURTH SECTION

DECISION

Application no . 27979/08 Raitis ĀBOLIŅŠagainst Latvia

The European Court of Human Rights ( Fourth Section ), sitting on 9 December 2014 as a Chamber composed of:

Päivi Hirvelä , President, Ineta Ziemele , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 12 May 2008 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Raitis Āboliņš , is a Latvian national, who was born in 1977 and lives in Jēkabpils .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

3 . On 1 February 2006 the applicant was arrested in connec tion with criminal proceedings against him. On 16 May 2006 the applicant ’ s criminal case was transferred to the Vidzeme Regional Court ( Vidzemes apgabaltiesa ) for adjudication. On 3 May 2007 the Vidzeme Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years ’ imprisonment , with subsequent two-year period of police supervision. On 22 February 2008 the Criminal Cases Chamber of the Supreme Court ( Augstākās tiesas Krimināllietu tiesu palāta ) rejected the applicant ’ s appellate complaint. The Court has no information on whether an appeal on points of law was lodged against the decision of 22 February 2008 .

2. Conditions in the short-term detention facility in Madona

4 . The applicant submitted that following his detention he was placed in a short-term detention facility located within the police station in Madona . The applicant had spent m ost of the pre-trial detention in Valmiera Prison, but when ever he had had to be questioned he had been brought to the short-term detention facility in Madona for between ten and twenty days. Altogether he had spent approximately 100 days in that facility .

5. The applicant made the following submissions on the conditions in the short-term detention facility in Madona . The applicant had not been provided with a mattress, pillow, blanket or bed linen, and had had to sleep on wooden planks. The artificial light had been too weak to permit reading or writing, and in fact had only lit one third of the cell ’ s total area. The noise from the ventilation machinery had been so loud as to prevent him from sleeping. The toilet had been merely a hole in a platform. Furthermore, the said platform had been fifty centimetres high, which had caused the applicant particular difficulty because he had had a category 3 disability (the least severe disability level) on account of his ankle injury. Furthermore, the applicant had been given food only once a day and had not been allowed outdoor exercise.

3. Conditions in Daugavpils Prison

6. Follo wing his conviction , the applicant was placed in Daugavpils Prison. The applicant submitted that he had been placed in a cell hosting ten inmates and that he had had to sleep on the top b u nk of a bunk bed, despite his disability. Moreover , the re had been too little space between the top bunk and the ceiling. Further more , the applicant had had no access to radio or television. Finally, half of his cell mates had smoked and there had been no ventilation.

7. On 30 July 2008, on the basis of the applicant ’ s inquiries, the Ministry of Health informed the applicant that in prisons it was only permitted to smoke in premises specifically set aside for that purpose.

B. Relevant domestic law

1. Conditions of detention

8 . Section 7 of the Law on Holding Procedures for Arrested Persons ( Aizturēto personu turēšanas kārtības likums ), which came into force on 21 October 2005, provides, inter alia , that an arrested person must be provided with food three times a day and drinking water at any time. It lays down the requisite areas of holding cells. It also requires every arrested person to be provided with a separate sleeping place, a mattress and a blanket. It further states that holding cells must be equipped with a toilet that is partitioned off from the cell. Holding cells must also have access to natural light and, during the night-time and dusk, must have artificial lighting. They also must be ventilated. Furthermore, if the detained person is placed in the short-term detention facility for more than 24 hours, she or he is entitled to at least 30 minutes ’ outdoor exercise. Section 1 of the same Law states that these provisions are also applicable to detainees and prisoners who have been taken to a short-term detention facility for reasons of procedural acts falling under criminal proceedings.

9. The requisite conditions of detention for detainees are primarily laid down in the Law on Detention Procedure ( Apcietinājumā turēšanas kārtības likums ), which came into force on 18 July 2006. Section 19 of this Law sets out the minimum areas of cells, which must be ventilated, and requires detainees to be provided with an ind ividual sleeping place. Section 13(1 )( 10) allows detainees to use a radio and a small television. With regard to convicted persons, similar conditions are provided for in section 47 1 and section 77 of the Sentence Enforcement Code ( Latvijas Sodu izpildes kodekss ).

2. Prohibition on smoking in detention facilities

10. Section 11 of the Law on Restrictions r egarding the Sale, Advertising and Use of Toba c co Products ( Likums “ Par tabakas izstrādājumu realizācijas , reklāmas un lietošanas ierobežošanu ” ), effective since 21 January 1997, sets out the restrictions on smoking. In particular, s ection 11( 1 )( 2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11( 1 )( 2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates.

3. Review of actions of public authorities

11. Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the H ead of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the H ead of the Prisons Administration can be brought to court (para 13).

12. The Administrative Procedure Law ( Administratīvā procesa likums ) , which came into force on 1 February 2004 , provides for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of th e L aw were summarised in the case of Melnītis v. Latvia (no. 30779/05 , §§ 24-26, 28 February 2012).

13. Section 195 of the Administrative Procedure Law, at the time of the latter ’ s enactment, provided that the court could order an interim measure ( pagaidu noregulējums ) where there was reason to believe that the execution of the court ’ s judgment might become difficult or impossible. With the amendments to the Administrative Procedure Law which took effect on 1 December 2006, section 195 was modified, and currently states that the court may order an interim measure where there is reason to believe that if the impugned administrative act remained in force, it could cause significant harm or damage, the prevention or restitution of which could be made very difficult or would require disproportionate resources, and where, upon examination of the information available to the court, the impugned administrative act appears prima facie unlawful. Since the enactment of the Administrative Procedure Law, the available relevant interim measures have been either a court ’ s ruling that would replace the requested administrative act or action by a public authority, or a court decision ordering the relevant institution to perform or refrain from a certain action, within a set time limit (section 196).

COMPLAINTS

14. The applicant complained under Article 3 of the Convention of the conditions prevailing in the short-term detention facility in Madona . On 2 September 2008 the applicant supplemented this complaint with the further allegation that the conditions of detention in Daugavpils Prison had also been contrary to Article 3 .

15. The applicant also raised a number of other complaints under Article 6, Article 8, Article 13, and Article 14 of the Convention.

THE LAW

A. Alleged violation of Article 3 of the Convention on account of the conditions in the short-term detention facility in Madona

16. The applicant complained that the conditions in the short-term detention facility in Madona had been contrary to Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

17. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , § 220, ECHR 2014 (extracts)).

18. Accordingly, under the terms of Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision (see Slivenko and Others v. Latvia ( dec. ) [GC], no. 48321/99 , § 68 , ECHR 2002 ‑ II (extracts) ) . The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see Jegorovs v. Latvia ( d ec. ), no. 53281/08, § 1 03, 1 July 2014).

19 . In the area of complaints of inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention; and compensation for the damage or loss sustained on account of such conditions. If an applicant has been held in conditions that are in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. Once, however, the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred. Where the fundamental right to protection against torture or against inhuman or degrading treatment is concerned, the preventive and compensatory remedies, in principle, should be complementary in order to be considered effective (see Melnītis , cited above, §§ 47 and 48).

20 . The Court has previously found that with regard to complaints about conditions of detention in short-term detention facilities in Latvia there were no available domestic remedies for protection of the rights guaranteed under Article 3. This conclusion was reached in the case of Kadiķis v. Latvia (no. 2) with regard to the applicant ’ s placement in a short-term detention facility from 28 April 2000 through 13 May 2000 in order to serve a fi f teen day penalty of administrative arrest (no. 62393/00, § 63, 4 May 2006). A similar approach was followed in the case of Ņikitenko v. Latvia concerning the applicant ’ s placement in a short-term detention facility after his arrest and subsequent detention in criminal proceedings , also in 2000 , as in this case the Court relied on t h e findings in Kadiķis and did not analyse the potential availability of a domestic remedy ( no. 62609/00 , § 25, 16 July 2009) .

21 . The Court cannot, however, follow the same approach in the present case. Since its judgments in KadiÄ·is and Å…ikitenko the Court has observed that the administrative courts were establish ed in Latvia in 2004 and that they have develop ed their case-law regard ing their jurisdiction to examine complaints about detention conditions, including those in short-term detention facilities.

22 . The Court recalls its conclusions in Melnītis that it was unclear whether the administrative courts, at the time of lodging of that application and in any event at least until 15 June 2006, examined detainees ’ complaints about the conditions of their detention (see Melnītis , cited above, § 52). S ince its judgment in Melnītis the Court has , however, received more examples in which the administrative courts have dealt with detainees ’ complaints about their conditions of detention.

23 . In the case of Ignats v. Latvia , in particular, the Court considered the domestic case-law in which the conditions in a detention facility from 27 July 2005 to 4 August 2006 had been scrutinised (( dec. ), no. 38494/05 , § 110, 24 September 2013). Accordingly, in view of the evolution of the administrative court ’ s case-law, the Court regarded this development as sufficient for the applicants to be required to explore the effectiveness of that remedy ( ibid., § 113). In that light, in Ignats the Court ruled that it was incumbent on the applicant to pursue the administrativ e complaint he had lodged on 21 April 2006 concerning his conditions of detention up until 4 August 2005 ( ibid. , § 115). In the case of Iļjins v. Latvia , the Court reached the same conclusion with regard to a complaint lodged on 6 October 2008 concerning conditions of detention up until 30 August 2008 (( dec. ), no. 1179/10 , § 39, 5 November 2013). In the case of Jegorovs v. Latvia the Court concluded that it was incumbent on the applicant, having complied with the extrajudicial procedure, to pursue his case, which concerned his conditions of detention up until 25 January 2007, in the administrative courts (cited above, §§ 110, 119). Accordingly, in the aforementioned cases the Court considered that the applicants, who had complained about detention conditions, would have had to have recourse to this compensatory remedy at national level in order to meet the requirement of the exhaustion of the domestic remedies.

24 . More recently, in the case of Kočegarovs and Others v. Latvia , the Court examined complaints about, inter alia , conditions in a short-term detention facility in Jūrmala between 10 and 16 May 2008 and in a holding cell of the Riga Regional Police Department between 14 and 15 April 2009 (( dec. ) nos. 14516/10, 26544/10 and 44939/11, 18 November 2014). In Kočegarovs and Others the Court assessed some examples of the administrative court ’ s case-law pertaining particularly to detention conditions in short-term detention facilities and, in the light of this case-law, and in the circumstances of the cases it dismissed the applicants ’ argument that a complaint to the administrative courts did not constitute an effective domestic remedy (ibid., §§ 117-128). The Court also recalled that once a Government claiming non-exhaustion has satisfied its burden of proof as to the availability of an effective domestic remedy, it falls to the applicant to establish that the remedy advanced by the Government was for some reason ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement to exhaust it (ibid., § 121 ).

25. Finally, the Court points to the possibility, available under domestic law, of supplementing the application to the administrative court with a request for an interim measure when the situation complained about within the administrative proceedings is such that it, if not put on hold, might prejudice the good administration of justice (see paragraph 13 above).

26 . Turning to the case at hand, the Court observes that the applicant has not provided the exact dates during which he was held in the short-term detention facility at the police station in Madona . The applicant ’ s submissions indicate that he was initially placed there on 1 February 2006 following his arrest and that he was brought back to this detention facility on further occasions. The applicant also submitted that he had spent approximately 100 days in the short-term detention facility in Madona while being primarily held in Valmiera Prison. Accordingly, the information advanced by the applicant indicates that the period which he spent in the short-term detention facility in Madona largely relates to the period in relation to which the Court concluded that a complaint about detention conditions with the administrative courts constituted an effective domestic remedy the applicants were required to exhaust (see paragraph 2 3 above). The applicant has not pointed to any circumstances that could lead to a different conclusion in the present case . In particular, the applicant has not suggested that throughout the time he was placed in the short-term detention facility in Madona he would not have been able to challenge the conditions in the detention facility in a timely and effective manner (to the contrary see Kadiķis v Latvia , cited above, but see paragraph 24 above).

27. Nonetheless, t he documents submitted by the applicant do not indicate that he lodged a complaint with the administrative courts or, for that matter, that he even attempted to bring the issues complained of to the attention of the chief of the police station, the Ministry of Interior or the Prisons Administration.

28. In view of the foregoing considerations, the Court finds that the applicant ’ s complaint under Article 3 of the Convention with regard to conditions in the short-term detention facility in Madona should be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Alleged violation of Article 3 of the Convention on the basis of the conditions in Daugavpils prison

29. The applicant also complained about the conditions which he had endured in Daugavpils Prison, alleging that they had been contrary to Article 3 of the Convention.

30. The Court refers to its above-mentioned conclusions with regard to the available domestic remedies concerning complaints about detention conditions (see paragraphs 22-26 above).

31. The Court first of all notes that also in relation to his complaint about the conditions in Daugavpils Prison the applicant did not indicate the dates when he was allegedly subjected to the conditions complained of. Furthermore, even though the applicant obtained confirmation from the Ministry of Health that under the domestic law smoking in prisons was only allowed in premises specifically set aside for that purpose, the applicant does not appear to have undertaken any further steps. The documents submitted to the Court do not indicate that the applicant informed the administration of Daugavpils Prison or the Prisons Administration, or even the Ministry of Health, about his dissatisfaction with the conditions in which he was being held. The applicant contended that any requests in that regard would have been “pointless.” However, without any further substantiation or evidence to that effect the Court cannot accept this allegation as founded.

32. As the Court has previously noted, where there are doubts about the effectiveness of a remedy the issue should be tested before the national courts (see Iļjins , cited above, § 37; Ignats , cited above, § 114; and Jegorovs , cited above, § 118). Moreover, only consistent refusals by the domestic courts to take into account the nature of the complaint and to award adequate compensation could serve as a valid ground to relieve the applicant from the duty to exhaust domestic remedies before applying to the Court on the matter (see Iļjins , cited above, § 38 and Jegorovs , cited above, § 111).

33. However, the applicant took no action to comply with the extrajudicial procedure in order to pursue his case in the first-instance administrative court, which would then have been amenable to judicial review on appeal and appeal on points of law. Furthermore, it does not appear that the applicant even so much as informed any of the domestic authorities of his grievances. Accordingly, the Court cannot but note that the applicant did not attempt to exhaust the available domestic remedies.

34. In view of the foregoing considerations, the Court finds that the applicant ’ s complaint under Article 3 of the Convention with regard to conditions in Daugavpils Prison should be dismissed, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.

C . Other alleged violations of the Convention

35. The applicant also raised complaints under Articles 6, 8, 13, and 14 of the Convention.

36. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Päivi Hirvelä Registrar President