FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8258/06 by Mikhail Aleksandrovich BRAGIN against Russia

The European Court of Human Rights ( First Section), sitting on 28 January 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 30 December 2005 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mikhail Aleksandrovich Bragin, is a Russian national who was born in 1981 and lives in the village of Makarovka , the Kursk Region. He is represented before the Court by Ms E. Liptser , a lawyer practising in Moscow . The respondent Government were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative , Mr G. Matyushkin .

I . The circumstances of the case

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

A. The applicant ' s account of his detention in correctional facility OX-30/3

On 9 July 2003 the applicant was sent to correctional facility OX-30/3 in Lgov of the Kursk Region to serve his sentence.

On his arrival at the facility he was placed in quarantine . Two days later R., a facility administration official, invited him to become a member of the so-called “ секция порядка ” (literally, “order section”, an informal category of prisoners who cooperated with the prison administration). The applicant refused. Then R. threatened him with rape. The applicant insisted on his refusal. As a result of his refusal he was beaten by R. and other facility officers whose names he did not know but who, according to him, he would be able to identify.

In the applicant ' s submission, he was then taken to unit no. 6. Security unit officers V.R., O.Z., A.O. and O.O. tried to persuade him to write a statement on adhesion to the “order section”. Following his refusal, for half an hour V.R. and O.O. beat and kicked the applicant in different parts of his body but not his face. Then V.R. told O.O. that if the applicant had not written a statement by the evening, O.O. should bring him to the security unit tomorrow morning. Every morning for the next twenty days the applicant was taken to the security unit where he was beaten by V.R. and O.Z., who continued to demand that he join the “order section”. The beatings continued throughout the applicant ' s detention in the facility.

According to the applicant, on several occasions he requested medical aid, which was not provided to him. His injuries were not recorded either. He lodged written complaints concerning the actions of the facility officials. However, he received no replies and was not even provided with the numbers of his complaints in the facility register.

On the night of 26 and 27 June 2005 approximately 400 inmates at the facility self-inflicted injuries (they cut their veins and stomachs) as a protest against ill-treatment on the part of the facility administration. Nothing in the materials of the case suggests that the applicant self-inflicted any injuries.

According to the applicant, on 27 June 2005 he and other inmates sent a complaint to the Prosecutor ' s Office of the Kursk Region alleging that the inmates had been systematically beaten by the facility officers and asking for criminal proceedings to be instituted against the head of the facility and the officers, including V.R. The applicant did not submit a copy of the complaint in question.

On 1 July 2005 criminal proceedings were instituted against the applicant and three other inmates under Article 321 of the Russian Criminal Code (disruption of penitentiary facilities ' work).

B. The applicant ' s detention in remand prison IZ-46/2

On either 22 or 23 July 2005 the applicant was transferred to remand prison IZ-46/2 of Lgov, in the Kursk Region.

On 17 August 2005 he was charged with disrupting penitentiary facilities ' work.

According to the applicant, on 27 July 2005 he complained to A., deputy head of the regime unit of remand prison IZ-46/2, that the conditions of detention in his cell were poor. He claimed that water was constantly leaking from the ceiling, and that his cell was wet and damp. The applicant asked that he and the other inmates be transferred to a different cell. In response A. hit the applicant in the face three times and said that he was beating him for what they had done in facility OX-30/3 and that he would not get out of there alive.

According to the applicant, in the remand prison he was often placed in a disciplinary cell in the absence of any grounds for disciplinary measures. He had to spend from five to ten days in the cell at least three times a month. The cell was unfit for living as it was always very cold and damp.

According to the applicant, he sent a number of complaints concerning the actions of the remand prison officers to the Prosecutor ' s Office of the Kursk Region, the Lgov Interdistrict Prosecutor ' s Office and the Ombudsman. However, he received no replies and was not even provided with the numbers of his complaints in the remand prison register. The applicant has not submitted any information on the nature of such complaints or their dates.

In the Government ' s submission, between 8 August and 21 September 2005 the applicant was visited by his lawyers five times. During the applicant ' s detention in remand prison IZ-46/2 he was questioned first as a witness and then as an accused in the criminal proceedings concerning the disruption of the work of correctional facility OX-30/3. However, he was never questioned in relation to criminal proceedings opened following the numerous complaints lodged by the inmates with regard to unlawful actions on the part of the OX-30/3 administration.

On 21 December 2005 the applicant was convicted of disrupting penitentiary facilities ' work.

II . Relevant domestic law

Article 125 of the Code of Criminal Procedure provides that inaction by investigators and prosecutors that might infringe the constitutional rights of participants in criminal proceedings or prevent access to a court may be the subject of a complaint to a court. The court has the power to declare such inaction unlawful and indicate to the investigators and/or prosecutors which deficiencies are to be rectified.

Article 91 § 2 of the Criminal Code , as amended on 8 December 2003, provide s that all incoming and outgoing correspondence of detainees is subject to censorship by the administration of the correctional facility . C orrespondence with court s , prosecutors, penitentiary officials, the Ombudsman , the public monitoring board and the European Court of Human Rights is not subject to censorship. Correspondence of convicted persons with their counsel is not subject to censorship unless the administration of the correctional facility has reliable information to the effect that it is aimed at initiating, planning or organising a crime or involving other people in the commission of a crime. In this case the correspondence is subject to control on the basis of a reasoned decision by the head of the correctional facility or his deputy.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had been ill-treated in correctional facility OX-30/3 of Lgov.

2. The applicant complained under Article 3 of the Convention of ill ‑ treatment and poor conditions of detention in remand prison IZ-46/2 of Lgov.

3. The applicant complain ed under Article 13 of the Convention that he had been deprived of the opportunity to send his complaints against State officials to the competent authorities. He further complained that there was no investigation into his allegations of ill-treatment in correctional colony OX-30/3 of Lgov.

4. The applicant complained under Article 8 that all his correspondence had been read by State officials and a large number of his complaints and applications to various State authorities and to his counsel had not been sent to the addressees at all. He claimed that the interference with his correspondence had been unlawful and in breach of the Convention.

THE LAW

1. The Government claimed at the outset that the applicant had not complied with the six-month rule. They pointed out that, although the application form was dated 30 December 2005, the Registry ' s stamp indicated that it had been received only on 21 February 2006.

The Court does not deem it necessary to establish whether the applicant complied with the six-month rule since his complaints should be declared inadmissible on other grounds for the reasons given below.

2. Relying on Articles 3 and 13 of the Convention, t he applicant complained that he had been ill-treated in correctional facility OX-30/3. He also alleged that the investigation into his allegations had not been effective. The applicant further complained that he had been subjected to ill-treatment in remand prison IZ-46/2 . The relevant Convention Articles provide :

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contested the applicant ' s allegations . They claimed that the applicant had not complained about alleged ill-treatment to the competent investigative and judicial bodies. They further indicated that the applicant could have lodged civil claims for compensation for non ‑ pecuniary damage, as well as request a prosecutor ' s office to institute criminal proceedings against the facility officers. They referred in this connection to the case of Mr Sh., who had successfully complained about beating in facility OX-30/3: two facility officers, including V.R., had been prosecuted and convicted, and Mr Sh. had been awarded 20,000 Russian roubles (RUB) in respect of non-pecuniary damage.

According to the Government, the applicant had not complained to prosecutors about the ill-treatment he had allegedly been subjected to in OX-30/3. According to the registration log of outgoing correspondence of correctional facility OX-30/3, the applicant had not sent any complaints on 27 June 2005 either to the prosecutor ' s office of the Kursk Region or other bodies. On 10 August 2005 he had written to the prosecutor ' s office of the Kursk Region asking them to question additional witnesses. The prosecutor ' s office of the Kursk Region confirmed that the complaint of 10 August 2005 had been the only complaint that their office had received from the applicant between 2003 and 2007 and that it had reached their office on 23 August 2005 . In sum, the Government claimed that the applicant had failed to exhaust available domestic remedies

The Government also claimed that the applicant ' s complaints of ill ‑ treatment were manifestly ill-founded. They stated that the applicant had not been granted victim status in the criminal case instituted in relation to Mr Sh. ' s beating by the facility officers. At the same time a trial court had not established that the applicant had been ill-treated in facility OX-30/3 while examining the charges of disruption of the facility ' s work brought against him. On the contrary, at the trial the applicant had confirmed that he had beaten his fellow inmates.

In the Government ' s view, the applicant had not provided any evidence to prove that he had been ill-treated in the correctional facility or the remand prison. No injuries were registered in his medical records. Registration logs of facility OX-30/3 and remand prison IZ-46/2 did not mention any complaints concerning ill-treatment sent by the applicant to the competent domestic authorities or his counsel.

The applicant contested the Government ' s submissions. He reiterated his allegations that he had been subjected to ill-treatment throughout his detention in the correctional facility. He further claimed that the prosecutor ' s office had not replied to his complaint of 27 June 2005 and thus deprived him of all effective remedies. The applicant asserted that his fellow inmates, including Mr Sh., had confirmed that the OX-30/3 facility officers had beaten detainees and submitted written statements by the inmates describing how the officers had ill-treated certain detainees; however, the applicant ' s name was not mentioned among the victims of the ill-treatment.

The applicant also insisted that on 27 July 2005 the remand prison official had punched him in the face three times. The applicant further submitted that his complaints concerning the actions of OX-30/3 officers and the official of the remand prison had not been sent to the addressees. Therefore, he had not failed to exhaust domestic remedies; rather, there had been no effective remedies. In sum, the applicant insisted that there had been a violation of Articles 3 and 13 of the Convention on account of ill ‑ treatment in the detention facility and the remand prison and the lack of an adequate investigation.

T he Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are ina dequate or ineffective (see Aksoy v. Turkey , 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996 ‑ VI; and Akdıvar and Others v. Turkey , 16 September 1996, §§ 65-67 , Reports 1996-IV). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to t he competent authority (see Knyazev v. Russia , no. 25948/05, § 84 , 8 November 2007 ).

The Court further emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism . It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see Akdivar and Others , cited above , § 69; and YaÅŸa v. Turkey , 2 September 1998, § 77, Reports 1998 ‑ VI ).

Turning to the facts of the present case, the Court notes that the applicant claimed to have sent on 27 June 2005 a complaint to a prosecutor ' s office concerning the alleged ill-treatment in correctional facility OX-30/3. The Government contested his assertion. Referring to the correspondence registration log, they claimed that the applicant had not sent any complaints on that day.

The Court observes that the applicant has not submitted any evidence in support of his claim that on 27 June 2005 he complained to the prosecutors in writing. Assuming for the sake of argument that he did and then received no reply, the Court considers that after a certain lapse of time the applicant should have realised that the prosecutor ' s office of the Kursk Region had not received or had failed to register his complaint. In the Court ' s view, had the applicant been genuinely willing to bring his grievances to the attention of the domestic authorities, he could have complained to a court about the prosecutors ' inaction under Article 125 of the Code of Criminal Procedure. The Court observes that although a court itself had no competence to institute criminal proceedings, its power to declare the inaction unlawful and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of power by the investigating authority (see, mutatis mutandis , Trub n ikov v. Russia (dec.), no. 49790/99, 14 October 2003). Therefore, such an appeal might be regarded as a possible remedy where the prosecution failed to examine the complaint.

Furthermore, the Court points out that the applicant has not provided any detailed information concerning his complaints sent from the remand prison. Given these circumstances it is inclined to consider that the applicant did not lodge a formal complaint of ill-treatment by the remand prison officer with either a prosecutor or a court.

In principle, the Court recognises the vulnerability of detainees and the difficulty that they face in pursuing complex legal proceedings. These considerations may be taken into account in the flexible approach to be adopted in such circumstances. However, in the present case the Court finds no reasons to dispense the applicant from exhausting the domestic remedies that were available to him. The Court notes that, throughout the proceedings, the applicant was assisted by a lawyer, who could have advised him to challenge the prosecutor ' s inaction before a court. Furthermore, assuming that the applicant indeed experienced difficulties in sending complaints from the correctional facility and the remand prison, it is not clear why he did not ask his lawyer s to lodge such complaints on his behalf in the course of their visits .

Therefore, the Court concludes that the applicant failed to exhaust the available domestic remedies with regard to his complaint of ill-treatment in correctional facility OX-30/3 and remand prison IZ-46/2.

As regards the applicant ' s complaint under Article 13 of the Convention, the Court refers to its findings above that the applicant had effective domestic remedies in respect of his complaints under Article 3, which he failed to have recourse to. Accordingly, the applicant ' s complaint under Article 13 of the Convention is manifestly ill-founded.

It follows that this part of the application should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complained under Article 3 of the Convention that the conditions of his detention in remand prison IZ-46/2 were deplorable .

The Government contested the applicant ' s allegations. They insisted that the applicant had failed to exhaust available domestic remedies in respect of the allegedly poor conditions of his detention in the remand prison. The Government further insisted that the applicant had not complained about the conditions of his detention in both correctional facility OX-30/3 and remand prison IZ-46/2 to the domestic courts. They claimed that at all times while in the remand prison the applicant had had at least 4.2 square metres of personal space in a cell. Every cell in which the applicant had been kept had had the mandatory ventilation system in working condition and natural ventilation and had been in good condition. There had been no leaks in the cells; the humidity level in the cells had not exceeded 50%. The temperature in the cells had been between + 19 and + 24 degrees Celsius. In sum, the Government claimed that the conditions of the applicant ' s detention in remand prison IZ-46/2 had been compatible with Article 3 of the Convention.

The applicant disagreed with the Government. He submitted that he had been regularly placed in a disciplinary cell for five to ten days and thus had been detained in solitary confinement. His cells had been damp as there had been leaks and it had been cold. He did not submit any materials to support his allegations.

The Court reiterates at the outset that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant ' s complaints and offered reasonable prospects of success. The Court further reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see, among other authorities, Polufakin and Chernyshev v. Russia , no. 30997/02, § 139 , 25 September 2008 ).

The Government submitted that the applicant had not lodged any complaints concerning the conditions of his detention in remand prison IZ ‑ 46/2 before prosecutors or courts. However, they did not specify what type of claim or complaint would have been an effective remedy in their view and did not provide any further information as to how this could have prevented the alleged violation or its continuation or provided the applicant with adequate redress. In the absence of such evidence and having regard to the above-mentioned principles, the Court finds that the Government have not substantiated their claim that the remedies that the applicant had allegedly failed to exhaust in relation to his complaints concerning the conditions of his detention in the remand prison were effective (see, among other authorities, Kranz v. Poland , no. 6214/02, § 23, 17 February 2004; and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

Accordingly, the Court dismisses the Government ' s objection in respect of the complaint concerning the conditions of the applicant ' s detention in the remand prison.

Turning to the well-foundedness of the applicant ' s complaint, the Court first reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ' s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). In order to fall under Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the state of health of the victim (see Ireland v. the United Kingdom , 18 January 1978, § 162 , Series A no. 25 ). Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece , no. 28524/95, § 74, ECHR 2001-III). Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, it is incumbent on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Valašinas v. Lithuania , no. 44558/98, §§ 101-02, ECHR 2001-VIII).

As regards the applicant ' s complaint about his detention in isolation while in a disciplinary cell, the Court reiterates that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see Messina v. Italy (dec.), no. 25498/94, ECHR 1999 ‑ V). The Court points out that the length of the applicant ' s isolation on no occasion exceeded ten days. The Court considers that the applicant has not given it any grounds to assume that such short-term isolation could break down his self esteem or have any major adverse impact on his well-being. Therefore, the Court concludes that this part of the complaint is unsubstantiated.

Turning to the physical conditions of his detention while in the remand prison, the Court observes that the parties ' descriptions of those conditions are in disaccord. The applicant alleged that the cells in which he had been kept were damp and cold. The Government contested this argument, referring to certificates issued by the remand prison authorities.

Since the applicant ' s allegations were not supported by any proof, the Court finds it difficult to verify the truthfulness of his description of the cells. It takes into consideration that the applicant might have experienced difficulties in procuring documentary evidence. The Court points out at the same time that in cases where detainees were unable to produce documents to support their complaints it has relied on other evidence, for example, written statements signed by eyewitnesses who shared the applicant ' s cells (see, for example, Khudobin v. Russia , no. 59696/00, § 87, ECHR 2006-... (extracts)). Accordingly, it was open to the applicant to provide the Court with written statements by his cell-mates. The Court notes that it would be unreasonable to expect the applicant to submit any inmates ' statements concerning the state of the disciplinary cell where he was kept in isolation. However, a copy of a complaint to any domestic body describing in detail the physical conditions of the applicant ' s detention in the disciplinary cell would give more weight to his allegations made before the Court.

Owing to lack of evidence, the Court is therefore not in a position to conclude that the applicant has made a prima facie case as regards the poor physical conditions of his detention while in the remand prison.

It follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained that State officials had interfered with his correspondence. He relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:

“1. Everyone has the right to respect for ... his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the applicant ' s right to correspondence had been restricted in accordance with Article 91 § 2 of the Russian Criminal C ode . However, the scope of the right as guaranteed by this provision had not been violated. The Government averred that all the applicant ' s letters to the law-enforcement agencies, the Ombudsman, bar associations, his counsel and the Court had been sent to the addressees. The Government enclosed extracts of postal registers kept at remand prison IZ ‑ 46/2 pertaining to the applicant ' s correspondence. They contended that there had been no interference with the applicant ' s correspondence.

The applicant maintained his allegations that his complaints to the law ‑ enforcement agencies and letters to his lawyers had been subjected to censorship or had not been sent to the addressees at all. Furthermore, in the applicant ' s view the Government failed to reply directly as to whether his correspondence had been subject to censorship.

The Court reiterates that a ny “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law ” , pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Silver and Others v. the United Kingdom , 25 March 1983, § 84 , Series A no. 61; Campbell v. the United Kingdom , 25 March 1 992, § 34 , Series A no. 233; and Niedbała v. Poland , no. 27915/95, § 78 , 4 July 2000 ).

The Court notes that under Article 91 § 2 of the Criminal Code detainees ' correspondence with court s , prosecutors, penitentiary officials, the Ombudsman , the public monitoring board and the Court is not subject to censorship. Correspondence with counsel is not subject to censorship except where authorised by a reasoned decision by the head of the correctional facility or his deputy, based on reliable information that the correspondence was aimed at initiating, planning or organising a crime (see Knyazev , cited above, § 109).

The Court notes that, according to the postal registers submitted by the Government, sixteen letters and complaints by the applicant were sent to various recipients from remand prison IZ-46/2, as well as one letter from correctional facility OX-30/3. The Court observes that the applicant did not provide any evidence that his correspondence had been subjected to censorship in breach of Article 92 § 2 of the Criminal Code. Likewise he failed to furnish any evidence that any of his letters had not been sent to the addressees or at least to submit specific details of the letters which he alleged had not been dispatched by the administration of the correctional facility or the remand prison.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President