FOURTH SECTION

Application no. 55047/12 Jevgēnijs SIMANOVIČS against Latvia lodged on 4 July 2012

STATEMENT OF FACTS

The applicant, Mr Jevgēnijs Simanovičs , is a permanently resident non-citizen of the Republic of Latvia , who was born in 1966 and is serving a prison sentence in Rīga .

A. The circumstances of the case

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

From 31 August 2004 the applicant was detained in Daugavgrīva Prison (before 1 November 2008 the applicant ’ s place of detention was called Daugavpils Prison). According to the information provided to the applicant by the administration of Daugavgrīva Prison on 2 November 2011, during the course of his detention there he had been held in twenty-four different cells, in which the floor surface available per prisoner ranged from 2,53 m 2 to 4,1 m 2 .

According to the applicant, the conditions of his detention were unacceptable. The cells where he was detained were overcrowded, there was only one toilet and one sink per ten detainees, there was constant noise and limited space. The applicant was held indoors for 23 hours each day and had to sleep in a bed that was placed directly next to another prisoner ’ s bed. Smoking was allowed in cells and the applicant, a non-smoker, was constantly exposed to cigarette smoke. The ventilation was only turned on for one hour each day. The toilet was not isolated from the rest of the cell and could be seen by other detainees. The prison cells were in a bad state of repair. Mice and fleas were present in the cells.

On 21 January 2009 the applicant complained to the Prisons Administration. He indicated, among other things, that cell no. 208 of Daugavgrīva Prison held ten people instead of five which could “realistically be held there”. The applicant claimed that the situation in other cells was not different. He further complained of the smoking in cells and the fact that he had to sleep directly next to another man. The applicant asked for compensation of 100,000 Latvian lati (LVL).

On 27 February 2009 the Prisons Administration issued a decision in respect of the applicant ’ s complaint. The decision indicated that “recently” (“ pēdējā laikā ”) the applicant had been held in the following cells:

1) 18 October to 4 November 2008 – cell no. 208 (measuring 26 m 2 , holds up to 10 prisoners);

2) 4 November 2008 to 30 January 2009 – cell no. 217 (measuring 26,5 m 2 , holds up to 10 prisoners)

3) 30 January 2009 to 6 February 2009 – residential section no. 15 (measuring 64,6 m 2 , holds up to 7 prisoners)

4) since 6 February 2009 – residential section no. 6 (measuring 35,4 m 2 , holds up to 8 prisoners).

The Prisons Administration thus considered that the applicant had been held in cells, the capacity of which complied with the domestic legal requirements (minimum of 2,5 m 2 of floor surface per prisoner).

As to the complaint about having to share a prison cell with smokers, the Prisons Administration referred to, among other things, the applicant ’ s refusal to be moved to a non-smoking cell on 10 November 2008. The remainder of the applicant ’ s complaints and his compensation claim were also rejected.

On 9 March 2009 the Administrative District Court received the applicant ’ s complaint about essentially the same circumstances as he had outlined in his complaint to the Prisons Administration. As to the time covered by his complaint the applicant indicated that he had been in Daugavgrīva Prison already for “a long time” (“ ilgstoši ”). With regard to his refusal to be transferred to a non-smoking cell the applicant explained that the proposed cell was a single one which already had held two other persons at the time. In his complaint the applicant indicated that he had submitted a complaint to the Prisons Administration but had received no reply.

On 31 August 2009 the applicant amended his initial complaint. Among other things he indicated that “it would be good” if the court requested information about the space available in cells nos. 211, 219 and 223, indicating that at unspecified time he had been held in cells nos. 211 and 219.

On 28 April 2010 the Administrative District Court rejected the applicant ’ s claim. That court construed the applicant ’ s claim as being a complaint about an action of a public authority ( faktiskā rīcība ). The District Court stated that according to the established case-law of the Senate of the Supreme Court actions of public authority were amenable to review in administrative courts only if they are found to have significantly interfered with an individual ’ s human rights. The District Court analysed separately the applicant ’ s complaint about being placed in a cell with smokers and the complaint about the conditions of detention generally.

It was held that is a prisoner were to ask the administration of a prison to be placed in a non-smoking cell, the administration had the duty to offer him such a possibility. On the facts of the case the District Court observed that the applicant had been offered a place in a non-smoking cell, which he had refused.

As to the general conditions of detention, the District Court relied upon the information provided by the Prisons Administration and concluded that from 18 October 2008 until 6 February 2009 “and afterwards” the applicant had been held in cells that provided for at least 2,6 m 2 of floor surface per prisoner. Taking into account that section 77 of the Sentence Enforcement Code provided that adult male prisoners should be provided with at least 2,5 m 2 of floor surface per prisoner, the District Court came to the conclusion that the cells in which the applicant had been detained had not been overcrowded. Lastly the judgment stated that the applicant ’ s complaint that his sleep was disturbed “because of having to sleep in a bunk bed” was “a question of medical nature, concerning which [the applicant] should turn to the prison doctor”.

The applicant appealed on 30 April 2010 and amended his appeal on 22 August 2010.

On 27 September 2011 the Administrative Regional Court adopted a judgment, in which it upheld the applicant ’ s claim in part. The judgment reported that during the hearing the applicant had stated that he had been serving his prison sentence in inhuman conditions “for more than four years”. The Regional Court limited the scope of its examination to “claims that ha[d] been examined by the first-instance court”. The Regional Court next fully upheld the first-instance court ’ s conclusions with regard to the applicant ’ s complaint that he had not been placed in a non-smoking cell.

With regard to the conditions of detention, however, the Regional Court referred to, inter alia , number of international human rights instruments, CPT guidelines and the Court ’ s case-law ( Bazjaks v. Latvia , no. 71572/01 , §§ 37 and 105-113, 19 October 2010 ) and came to the conclusion that in multi-occupancy cells prisoners had to have at their disposal no less than 4 m 2 of floor surface per person. Taking into account the information that had been provided by the Prisons Administration (see above) the Regional Court came to the conclusion that from 18 October 2008 to 30 January 2009 the applicant had at his disposal less than 4 m 2 of floor surface and therefore during the period that lasted 104 days his human rights had been violated. Concerning the discrepancy between the international standards and the Latvian law, the Regional Court was of the opinion that, since section 77 of the Sentence Enforcement Code only set down the minimum floor surface to be ensured for each prisoner, the domestic authorities were in a position to apply the domestic law while keeping in line with the international standards.

The Regional Court next turned to the question of the availability of an adequate ventilation system. During the court hearing the applicant stated and the representative of the Prisons Administration did not deny that in Daugavgrīva Prison ventilations in cells was switched on for one to two hours each day upon the inmates ’ request. Taking into account that both parties were in agreement as to the facts, the Regional Court found that from 18 October 2008 to 30 January 2009 the administration of Daugavgrīva Prison did not ensure that the applicant could serve his prison sentence in a cell with adequate ventilation.

The Regional Court next turned to the question of compensation to be awarded. It considered that the conditions in Daugavgrīva Prison had done harm to the applicant ’ s dignity; therefore there were grounds to compensate him for personal harm. In addition, the Regional Court considered that the conditions of detention had significantly infringed the applicant ’ s rights which had caused him suffering, thus entitling him to compensation for moral harm. The court decided to award the applicant compensation of LVL 700 (approximately EUR 1,000), consisting of LVL 490 in compensation for personal harm and LVL 210 in compensation for moral harm. In establishing the total sum, the Regional Court sought guidance from compensation awarded by administrative courts in other cases, albeit none of those cases had concerned conditions of detention. The Regional Court also referred to the Strasbourg Court ’ s judgment Bazjaks v. Latvia (cited above), in which the Court awarded EUR 11,700 in compensation for non-pecuniary damage. The Regional Court, however, held that the conditions to which the applicant in Bazjaks had been subjected had been much worse and he had been held in those conditions for much longer, which were the considerations warranting the award of a lesser sum in the applicant ’ s case.

The applicant and the Prisons Administration each submitted appeals on points of law.

The applicant complained that the Regional Court had not taken into account the fact that he had been detained in Daugavgrīva Prison for four years and that for the whole four years he had been held in inhuman conditions. Accordingly he invited the Senate of the Supreme Court to increase the compensation due to him.

By a final judgment of 22 June 2012 the Senate of the Supreme Court rejected the appeals on points of law of both parties. The Senate noted that the applicant had not submitted an appeal on points of law as regards his placement in a cell with smokers; thus the Regional Court ’ s judgment had become final in that respect. As to the applicant ’ s argument that he was entitled to a higher compensation since he had in fact spent more than four years, and not just 104 days, in unacceptable conditions of detention, the Senate pointed out that the scope of the administrative proceedings was limited to the complaints which the applicant had raised before the Prisons Administration and which had been examined by the Prisons Administration. The Senate concluded that compensation of LVL 700 for 104 days of detention in unacceptable conditions was adequate.

On 9 July 2012 the applicant submitted a complaint to the Prisons Administration concerning the conditions of his detention in Daugavgrīva Prison from 31 August 2004 until October 2008, that is, concerning the period that had not been covered by the proceedings described above.

On 8 August 2012 the Prisons Administration refused to accept the applicant ’ s complaint as having been lodged out of time (within one year after the petitioner has become aware of the possibly unlawful action of a public authority).

On 15 October 2012 the Administrative District Court refused to accept the applicant ’ s appeal against the decision of the Prisons Administration, holding that the Law of Administrative Procedure provided for a strict three-year time-limit after the date when the petitioner knew or should have known about the allegedly unlawful actions of public authorities, after the expiry of which it was no longer to renew the time-limit for complaining about such actions. The time-limit having had expired in the applicant ’ s case, the District Court was precluded from examining his complaint.

On 11 January 2013 the decision of the Administrative District Court was upheld on appeal by a final decision of the Administrative Regional Court.

B. Relevant domestic law

The Law on Compensation for Damages Caused by State Institutions ( Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums ) at the relevant time defined personal harm ( personiskais kaitējums ) and moral harm ( morālais kaitējums ). “Personal harm ... is harm caused by unlawful action [ faktisko rīcību ] of an institution to a natural person ’ s life, physical integrity, health, liberty, honour and dignity ... or other non-pecuniary rights or legally protected interests” (section 8(1)). “Moral harm ... is the suffering of a natural person caused by a significant infringement of such person ’ s rights or legally protected interests” (section 9). The maximum award of compensation for personal harm and moral harm is capped at LVL 20,000 Latvian lati (approximately EUR 28,600) pursuant to section 14.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the conditions of his detention in Daugavgrīva Prison. More specifically, he complains about overcrowding, lack of adequate access to toilet facilities, lack of possibilities for physical exercise, the fact that windows in cells are obstructed by metal constructions that do not let in natural light, that the cells were not adequately ventilated, the fact that there was only one hour of outside walks, the fact that he could not get adequate sleep in the bunk beds and that he could only shower once every ten days for twenty minutes.

Under Article 6 § 1 the applicant complains about the outcome of the proceedings in the domestic courts, namely, that the courts failed to address the conditions of his detention between 31 August 2004 and 31 January 2009, that they did not take into account all of the violations of the his rights and that they awarded him an unfairly low compensation.

QUESTIONS TO THE PARTIES

1. With regard to the conditions of the applicant ’ s detention in Daugavgrīva Prison, has he been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention concerning the period from 31 August 2004 to 17 October 2008? Did the applicant complain about the conditions in which he was detained throughout the period when he was detained in Daugavgrīva Prison? What was the legal basis for the Prisons Administration ’ s decision to limit the period of examination to the time after 18 October 2008? Do the decisions of the Prisons Administration and the administrative courts in this respect comply with the Court ’ s case-law as concerns a “continuing situation” (see, for example, Fetisov and Others v. Russia , nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08 , §§ 77-78, 17 January 2012 )?

3. With regard to the period of 18 October 2008 to 30 January 2009, may the applicant still claim to be a victim of a violation of Article 3 of the Convention, within the meaning of Article 34? In particular, was the compensation awarded to the applicant reasonable in comparison with the awards made by the Court in similar cases (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 213, ECHR 2006 ‑ V )?