Resolution CM/ ResDH (2013 ) 9 [1]

Kochetkov against Estonia

Execution of the judgment of the European Court of Human Rights

(Application No. 41653/05, judgment of 2 July 2009, final on 2 October 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established (see document DH-DD(2013)23E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)23E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Kochetkov . v. Estonia

Application No. 41653/05, Judgment of 2 July 2009

1) Case description :

Degrading treatment of the applicant, a Russian national, as a result of the poor material conditions of his pre-trial detention for two weeks in 2005 at Narva Arrest House (in particular overcrowding, inadequate ventilation, impoverished regime and poor hygiene conditions) and lack of an effective remedy in this respect because of the restrictive approach by the domestic courts (also in 2005), applying a requirement that compensation was only available where someone was found to have been at fault for degrading the person concerned (violation of Article 3 and of Article 13).

2) Individual measures :

The applicant is no longer in pre-trial detention (§§ 5 and 6). No other individual measure is necessary (the just satisfaction granted by the Court for non-pecuniary damage (EUR 1,000) was paid on 12/11/2009).

3) General measures :

3.1 As to the general measures in respect of Article 3: measures taken in the remand centres and in particular at the Narva Arrest House

The number of concrete steps has been taken by the police to improve the physical conditions of custodial institutions, including at the Narva Arrest House . But first it must be stressed that in 2008 the custodial institution for 150 detainees was built in the eastern region of Estonia – Ida- Viru county, Jõhvi city. Jõhvi Arrest House and Narva Arrest House are both located in the east of the administrative area. The new custodial institution has significantly reduced occupancy at Narva Arrest House – detainees are mainly staying at Narva Arrest House only during the proceedings, thus they are detained there only for short-term. As of the beginning of 2011 the maximum amount of persons at Narva Arrest House was reduced to 20 persons; compared to the fact that there is space for 70. The average occupancy rate of Narva Arrest House has been 75% in 2012 and 77% in 2011, meaning that there are never more than 15 detainees at Narva Arrest House simultaneously, which excludes a possibility of overcrowding.

Concerning the question about the improvement of conditions at Narva Arrest House, the Government is informed that in 2011 the reparations of ventilation systems as well as maintenance work have been done. As to the needs of investigation bodies and courts located in the city of Narva , the Narva Arrest House continues to be necessary; the construction of a new Narva Arrest House has been taken into construction plan according to which the new custodial institution in Narva should be completed in 2013.

The Government note that the basic principle in improving the material conditions of custodial institutions is that custodial cells are mainly built into new buildings. The new custodial institutions can be built so that supervision and hygienic conditions of inmates are ensured in the best way; and that the best management for the preparation of the necessary medical facilities and catering service will be provided. In general, all conditions should be of similar levels in all custodial institutions. Thus, to improve detention conditions, construction of new buildings is preferred to the renovation of old ones. Only arrest houses that cannot be replaced in the near future because of the limited resources are foreseen in the renovation program. At the moment detainees are placed in such places for the shortest possible time, and after the procedural act is performed they will be placed either in prison or detained in another closest (new) detention institution.

In addition it must be noted that the improvement of the welfare of detainees is guaranteed by an opportunity to regularly have fresh air. Washing-conditions are guaranteed. Dining takes place in all custodial institutions three times a day according to the general food service standards. Medical service for detainees is guaranteed in all custodial institutions. In larger institutions medical stuff are contractual or permanent, in smaller centres medical service is provided in cooperation with the emergency medical service providers.

The Government also refer to the improvements in other custodial institutions in Estonia :

In 2009 16 new cells were built into the new police building in Tallinn Kolde street . Additionally, the design process has begun for the new 150-place detention centre being built on the territory of the future Tallinn prison.

In addition, the following activities are foreseen in the construction and renovation plan:

1) Construction of a new custodial institution in Kuressaare will be completed at the end of 2012;

2) Preparation of the detailed plan of the new detention center in Pärnu . Arrest house is planned to put in use in 2016;

3) Construction of a new custodial institution in Jõgeva will be completed in mid 2012;

4) Mapping construction opportunities for a new custodial institution in Haapsalu ;

5) Renovation of Valga Arrest House in 2013;

6) Renovation of Võru Arrest House in 2013.

3.2 As to the general measures in respect of Article 13: case-law examples of the domestic courts awarding compensation not only where someone was found to have been at fault for degrading a person concerned.

The Government confirm that there is extensive case-law of domestic courts on awarding the non-pecuniary damage regarding complaints against imprisonment conditions by detainees. Government officials ’ fault has not been a decisive factor in adjudicating these complaints; the decisive factor has been the existence of degrading conditions (or treatment). Below some case-law examples are briefly cited.

* Case-law examples regarding detention conditions in prison:

On 31 March 2010 in administrative case No. 3-07-2247 the Tallinn Court of Appeal awarded the applicant 5000 Estonian kroons for non-pecuniary damage. The applicant was forced to stay in the overcrowded cel ls of the 8th Murru Prison living quarter, where in addition people were smoking . The court was of the opinion that keeping detainees in crowded chambers is unlawful and may lower the dignity of a detainee and cause him suffering. Taking into account of the passive smoking in concurrence with overpopulation of the cell and scanty options to compensate for these conditions with longer than the minimal hour-long outdoor-time, the court found that the cumulative effect of the length of the disputed period and detention conditions had caused the applicant distress and difficulties in such graveness which exceeded the inevitable level of suffering in detention.

On 30 September 2010 in administrative case No. 3-09-1877 the Tallinn Court of Appeal awarded the applicant 4000 Estonian kroons for non-pecuniary damage. The grounds for the claim were lack of ventilation in the cell, dust, unacceptable level of iron content in water associated with an unpleasant taste and water turbidity, yellowish colour and brown sediment.

On 27 May 2011 in administrative case No. 3-09-1569 Tartu Court of Appeal awarded the applicant 1850 Estonian kroons (118,24 euros ) for non-pecuniary damage. The ground for the claim was that during certain periods of time the prison refused to give the applicant (a detainee) new clothes or to wash already issued ones. In the opinion of an appeal court a situation where a detainee has to wear the same clothes 5 weeks in a row as a result of the prison ’ s act or omission, can be seen as treatment against the detainee ’ s human dignity.

On 25 May 2011 in administrative case No. 3-10-3088 the Tartu Administrative Court considered it to be reasonable to award the applicant 159,78 euros (2500 Estonian kroons ) for non-pecuniary damage for deterioration of his health. The court took into account the time the applicant spent in the chamber with a broken window, diagnosed diseases, as well as the fact that the applicant did not have any permanent or long-term deterioration of his health.

On 8 March 2011 in administrative case No 3-10-1013 the Tartu Court of Appeal awarded the applicant 250 Estonian kroons (16 euros ) for non-pecuniary damage. The detainee had been placed in a punishment cell for 5-days. The damage was awarded for his inability to use a personal kettle due to lack of electric coupler socket; the monetary compensation was justified taken into account that the applicant was ill at the time of his placement in a punishment cell and consuming hot water would have been necessary.

* Case-law examples regarding conditions that lead to degradation of human dignity in an arrest house:

On 31 March 2010 in administrative case No 3-09-1922 the Tartu Administrative Court ordered the Western Prefecture to pay the applicant 3000 Estonian kroons for non-pecuniary damage for degrading conditions in Kuressaare Arrest House.

On 21 April 2010 the Supreme Court in administrative case No. 3-3-1-14-10 gave the instructions to lower instance courts regarding the awarding of non-pecuniary damage for degrading conditions in Rakvere Arrest House. Given the conditions of the arrest house and the fact that the applicant was not allowed to take walks for a sufficiently long period of time, by the final Tartu Court of Appeal decision of 16 February 2012 in case No 3-09-584 the applicant was awarded 300 euros for non- pecuniary damage.

On 28 June 2010 in administrative case No. 3-10-610 the Tartu Administrative Court awarded the applicant 6900 Estonian kroons for non-pecuniary damage. The ground for damage was the fact that the applicant had been staying at the chamber in the Tartu Arrest House in the department of maintenance of law and order under inhuman conditions. The court decided that a reasonable compensation was 50 euros per day (thus, as the applicant had been staying in the chamber for 138 days, an amount of compensation for non-pecuniary damage was 6900 Estonian kroons ).

3.3 Information on progress with the legislative amendments of the State Liability Act

The new draft State Liability Act 7 SE II-1

( http://www.r i igikogu.ee/?page=eelnou&op=ems&emshelp=true&eid=1328835&u=20120320101308 ) is currently in the proceedings of Parliament ( Riigikogu ). As this is a completely new act that is designed to amend the overall regulation on state liability, the proceedings have taken some time. On 7 November 2011 the first draft that had already passed through the first reading in Parliament in June 2011 was re-assigned to the Committee of Parliament. Assigning a draft to a Committee means further amendment of the draft before new deliberations in Parliament take place.

The Government confirm that experts from Ministry of Justice, the Supreme Court, State Prosecutor ’ s Office, Bar Association, Legal Chancellor, representatives of the Estonian Judges ’ Association and universities have been involved in amending the draft law. The involvement of the experts of the Supreme Court is extremely important because the Supreme Court made four judgments in 2011 regarding the unconstitutionality or lack of certain regulation in the State Liability Act, which should be taken into account when drafting the new act. Those judgments are one of the main reasons why the draft needed further amendments.

The Government would still refer to § 10(2) of the existing draft State Liability Act which foresees the following new provision: “the fault (culpability) is not taken into account if the right to life or prohibition of torture are violated”. The fact that the prohibition of torture has the same meaning as Article 3 of the Convention will be noted in the explanatory report of the draft act.

The Government cannot give concrete deadlines when the new act will be adopted by Parliament, but the Government can confirm, as can be seen from the examples given under para . 3.2, regardless of when the State Liability Act will be amended, the Estonian courts interpret also the currently valid version of the State Liability Act in accordance with the principles of the Convention and the Court ’ s case-law .

3.4 Publication and dissemination

The judgment of the Court was translated into Estonian and published on the web-site of the Ministry of Foreign Affairs ( http://www.vm.ee/?q=tax o nomy/term/229 ) and widely disseminated, including to the authorities directly concerned (in particular to the Ministry of the Interior, the Ministry of Justice and the Supreme Court).

4) Conclusions of the respondent State :

Estonia has paid the applicant the just satisfaction provided in the judgment in due time. Concerning general measures, the fact that the ventilation at Narva Arrest House has been improved, that it is used only for short-time purposes and that new arrest house in close vicinity – in Jõhvi - has been completed and new custodial institution in Narva will be completed in 2013 as well as the fact that extensive case-law on awarding non-pecuniary damages for degrading conditions in detention centres exist, Estonia finds that the judgment is implemented properly and fully and asks to close the examination of the case.

[1] Adopted by the Committee of Ministers on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies.