FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76114/01 by Vladislav Borisovich SOLOVYEV against Russia

The European Court of Human Rights (First Section), sitting on 27 September 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr A. Kovler , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 2 February 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 Vladislav Borisovich Solovyev , is a Russian national who was born in 1975 and lives in Kostroma . He was represented before the Court by Mr A. Belyakov , a lawyer practising in Kostroma . The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Criminal proceedings and pre-trial detention

On 30 August 2000 the applicant found a burglar in his flat and caused him fatal injuries. On the same day he was arrested and remanded in custody, and on 1 September 2000 he was charged with manslaughter.

On 11 September 2000 the applicant requested that Mr Belyakov , a privately retained lawyer, be admitted as a defence counsel.

On 2 October 2000 the applicant challenged his detention before the Sverdlovsk District Court of Kostroma. He also requested that Mr Belyakov be admitted to the proceedings as defence counsel. On an unidentified date Mr Belyakov was refused admission as defence counsel, apparently on the grounds that he had failed to submit proof that he was a member of a bar association.

On 2 November 2000 the court examined the applicant ’ s request for release, in proceedings at which the applicant was present in person and was assisted by Ms S., a legal aid counsel. The court upheld the applicant ’ s pre-trial detention, having found that it was justified in view of the seriousness of the charge and the applicant ’ s character. This decision could be appealed to the Kostroma Regional Court within seven days, but no cassation appeal was lodged.

On 16 January 2001 the Sverdlovsk District Court of Kostroma examined the charges against the applicant. The applicant was represented in the proceedings by Mr Belyakov . He was found guilty of causing grievous bodily harm and sentenced to two years ’ imprisonment.

On 26 January 2001 Mr Belyakov requested on the applicant ’ s behalf an extension of the ten-day time-limit for lodging an appeal against the judgment of 16 January 2001. On the same day the request was refused. No appeal was lodged against the refusal.

2. Prison conditions and medical assistance

Between 16 January 2001 and 29 August 2002 the applicant was serving his sentence in Correctional Colony OT-15/1, a penitentiary facility in Kostroma . The parties submitted the following accounts of conditions in OT-15/1, including health care and the prevention of tuberculosis .

(a) The applicant ’ s submissions

The unit where the applicant was housed was shared by 100 inmates. The diet was poor because the vegetable supply was limited to potatoes and beetroot. No medicines were available in the facility. During the applicant ’ s imprisonment in OT ‑ 15/1 there was an outbreak of tuberculosis, and the applicant had fears of contracting tuberculosis himself. He claimed to have developed chronic bronchitis, but he submitted no medical evidence of it.

(b) The Government ’ s submissions

On the applicant ’ s arrival in OT-15/1 he underwent a medical examination including an x-ray and clinical tests. He was found to be in good health.

He was placed in unit no. 14, a dormitory which measured 365.1 sq. m, including a sleeping area of 238 sq. m, a storage room, canteen, common room, washroom and toilet. At the material time the dormitory housed 110 inmates, which afforded them 2.17 sq. m of personal space in the sleeping area, or 3.32 sq. m in the whole unit including common areas. The catering in OT-15/1 conformed to the standard requirements. Inmates were provided with three meals a day.

Persons infected with tuberculosis were placed separately from the rest and treated in a specialised section of the local hospital. At the material period no outbreak of tuberculosis was registered in OT ‑ 15/1. Sanitary and epidemiological checks were conducted in the facility on a monthly basis. The reports for 2001-2002 indicated that there had been no infectious disease s registered in OT ‑ 15/1 in that period. There have always been sufficient supplies of medicines in the medical unit of OT-15/1.

During his imprisonment the applicant consulted a doctor on a number of occasions, which were recorded as follows. On 27 March 2001 he had a tooth removed by a dentist. On 26 July 2001 he was diagnosed with acute bronchitis. He was given leave from work and underwent medical treatment. The applicant did not turn up for the second appointment with the doctor. On 31 July 2001 he was diagnosed with furunculosis (boils), for which he received treatment. On 10 September 2001 and on 23 November 2001 he was diagnosed with a common cold; on both occasions he was given leave from work and underwent medical treatment.

The applicant underwent regular mandatory X ‑ ray examinations which took place on 25 January 2001, on 10 September 2001 and on 19 April 2002 and did not reveal any disease.

The Government submits that the applicant did not lodge any complaints concerning the conditions in OT ‑ 15/1 during his term of imprisonment or after release.

B. Relevant domestic law

Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male convicts in correctional colonies.

COMPLAINTS

The applicant complained under Article 3 of the Convention that the conditions in the penitentiary facility where he was serving his sentence had amounted to “torture” .

The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been based solely on the seriousness of the criminal charge and that the lawyer of his choice had not been admitted to the proceedings in which his detention had been reviewed by court .

The applicant complained under Article 6 § 1 of the Convention about the allegedly unfair criminal proceedings in which he had been convicted and claimed that the trial court lacked independence and impartiality .

The applicant complained that the investigator ’ s order to appoint an expert examination in his case had been phrased in terms incompatible with Article 6 § 2 of the Convention .

Finally, the applicant complained under Article 8 of the Convention that his correspondence with the family had been censored by the prison authorities.

THE LAW

1. The applicant alleged a violation of Article 3 of the Convention on account of the conditions in the penitentiary facility OT ‑ 15/1. He referred, in particular, to overcrowding, poor catering, high risk of contracting tuberculosis and insufficient health care. Article 3 of the Convention provides as follows:

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

The Government contested the applicant ’ s allegations. They submitted that the conditions in OT ‑ 15/1 complied with the standard requirements imposed by prison regulations and in any event did not breach Article 3 of the Convention. They made detailed submissions as regards the allocation of space per inmate (set out in the Facts section above) alleging that the facility could not be considered overcrowded because it allowed 2.17 sq. m per person in the sleeping area, which exceeded the statutory minimum of 2.0 sq. m per inmate. In addition, the inmates had access to communal facilities in the same sleeping area, which extended their personal space to 3.32 sq. m.

They also contested, with reference to the reports of the sanitary inspection, that there had been an outbreak of tuberculosis or other disease in the facility during the applicant ’ s imprisonment. They asserted that all inmates infected with tuberculosis had been held and treated separately from the rest.

The Government submitted an extract from the applicant ’ s medical records with a full list of his medical tests and the treatment he had received while in the facility (also set out in the Facts section above). They acknowledged that the applicant had on one occasion been diagnosed with acute bronchitis, for which he had received treatment, however they denied that the applicant had developed chronic bronchitis during his imprisonment. According to the Government, there had been no shortage of medicines in the facility.

The applicant partly disputed the Government ’ s submissions. First, he alleged that the use of common facilities adjacent to the unit sleeping area was not free, because access to them was limited to particular hours. Secondly, he submitted that it was not his fault that he did not visit the doctor for the second time after having been initially diagnosed with acute bronchitis, but being a detainee he depended on the prison administration to arrange this visit. He also stated that the Government had failed to substantiate their submissions concerning the availability of medicines in the facility by not specifying the medicines used for the treatment of his bronchitis. Thirdly, he contested the statement that inmates infected with tuberculosis were held separately and stated that the Government had not provided any further details, such as names of the persons concerned, the dates of their imprisonment or the place where they were held in isolation.

The Court first notes that the complaint about the poor conditions in the penitentiary facility is based primarily on allegations of overcrowding and poor catering. As regards the former, the Court observes that the applicant was allocated 2.17 sq. m of personal space in the sleeping area and that he was at all times provided with an individual bunk bed. A further 1.16 sq. m was allocated to him in the communal areas of the unit, and the Court considers that this space must be taken into account even if access to it was restricted to particular hours. It observes that these figures exceed the domestic standard of 2.0 sq. m for male convicts in correctional colonies. Furthermore, it reiterates that the personal space in the dormitory must be viewed in the context of the wide freedom of movement enjoyed by detainees in correctional colonies during the daytime, which ensures that they have unobstructed access to natural light and air (see Nurmagomedov v. Russia ( dec .), no. 30138/02, 16 September 2004, and ValaÅ¡inas v. Lithuania , no. 44558/98, §§ 103 and 107 , ECHR 2001 ‑ VIII ).

It was not alleged that light, ventilation, sanitary conditions or heating in the dormitory were inadequate.

As for the allegedly poor catering, the Court notes that this complaint is rather vague and unsupported by any evidence or at least by detailed description of the meals served to the applicant during his imprisonment.

Turning to the applicant ’ s allegations concerning shortcomings in the facility ’ s health care, the Court observes that the applicant ’ s claims that he developed chronic bronchitis, that no medicines were available to treat his acute bronchitis, and that he was at high risk of contracting tuberculosis are unsubstantiated by any evidence. In particular, the applicant failed to provide any medical proof that he had developed chronic bronchitis, although nothing prevented him from visiting a doctor since his release in 2002. There is, accordingly, no basis to conclude that the treatment he received for his acute bronchitis was ineffective, or that the lack of appropriate medicines caused damage to his health. Likewise, the complaint about the presence of inmates infected with tuberculosis is not accompanied by any examples of such detainees being placed in his unit, or by mention of any incidents, known to him, of other inmates contracting tuberculosis in OT ‑ 15/1. It follows that the applicant has failed to make a prima facie case of ill-treatment on these counts.

The Court, furthermore, observes that the applicant did not file any complaints with the domestic authorities of inadequate medical treatment or unsafe practices such as holding persons infected with tuberculosis together with other inmates. It reiterates that where the applicant ’ s complaint stems not from a known structural problem, such as general conditions of detention, in particular overcrowding, but from an alleged specific act or omission by the authorities , the applicant must be required, as a rule, to exhaust domestic remedies in respect of such complaints (see Tarariyeva v. Russia ( dec .) , no. 4353/03 , 11 October 2005). In the present case, it does not find any grounds for absolving the applicant from the requirement of exhaustion of domestic remedies as regards the allegedly poor health care and risk of tuberculosis. However, given that these allegations were made in the context of a general complaint about poor conditions of detention, it does not consider it necessary to dismiss them separately on the grounds of non ‑ exhaustion of domestic remedies.

In view of the applicant ’ s failure to substantiate any of his allegations concerning the poor conditions in the penitentiary facility, the Court considers it manifestly ill-founded as a whole. It concludes that this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention.

2. The applicant alleged that his pre-trial detention had not been based on relevant and sufficient reasons and that the lawyer of his choice had not been admitted to the proceedings before the Sverdlovsk District Court of Kostroma on 2 November 2000. In respect of both complaints he relied on Article 5 § 3 of the Convention. Article 5 of the Convention provides, in so far as relevant, as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

...”

The Court notes that the applicant had the possibility of appealing against the judgment of the Sverdlovsk District Court of Kostroma of 2 November 2000 to the Kostroma Regional Court . However, he has not done so and did not argue that this failure was imputable to the authorities.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did 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 must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application i nadmissible .

Søren Nielsen Christos Rozakis Registrar President