MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1369/H46-29

5 March 2020

1369th meeting, 3-5 March 2020 (DH) Human rights   H46-29 Tomov and Others v. Russian Federation (Application No. 18255/10) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2020)114

 

Application	Case	Judgment of	Final on	Indicator for the classification
18255/10	TOMOV AND OTHERS	09/04/2019	09/07/2019	Pilot judgment

Case description

Structural problem highlighted by the European Court, applying the pilot-judgment procedure, of inhuman and degrading treatment caused by the poor conditions of transport for detainees (violation of Article 3) and lack of an effective remedy in this respect (violation of Article 13).

Under Article 46 of the Convention, while observing that the authorities are already taking significant measures to eradicate the problem and that there is a trend towards an improvement in the conditions of prisoner transportation and an overall reduction of the prisoner population in the Russian Federation (§§ 180-181), the Court highlighted the recurrent and persistent nature of this issue and the large number of persons affected or capable of being affected. It noted that the Committee of Ministers has been supervising the execution of the judgments related to this problem since 2008 in the Guliyev group (No. 24650/02). It also noted with grave concern that no domestic remedies have been made available more than six years after the Ananyev and Others pilot judgment (No. 42525/07, final on 10 April 2012), in which the Court held that remedies must be introduced in respect of the similar issue of inhuman and degrading conditions of detention.

In the operative part, the Court held that the respondent State, in co-operation with the Committee of Ministers, is to make available within 18 months, i.e. 9 January 2021 a combination of effective domestic remedies in respect of complaints about conditions of transport, with both preventive and compensatory effects, to comply fully with the requirements set out in this judgment, and that it will adjourn consideration of the similar cases pending before it until that date.

The Court further considered that the respondent State had failed to comply with its procedural obligations under Article 38 on account of its refusal to submit the evidence requested by the Court (§§ 85 – 91).

In respect of one applicant (Mr Rakov), the Court also found a violation of the principles of adversarial proceedings and equality of arms in civil proceedings, concerning claims for compensation for poor conditions of his transport, on account of the domestic courts' refusal to grant him leave to appear (violation of Article 6 § 1).[1]

Status of execution

An action plan in response to the Tomov and Others judgment was received on 7 February 2020
(DH-DD(2020)114), a summary of which is set out below.

Individual measures:

The authorities indicated that the applicants have not yet submitted their bank account details for the payment of the just satisfaction and that it will be paid once this information is received.

All applicants are now at liberty, with the exception of Mr Barinov, who is serving his sentence. The authorities believe that the general measures (see below) will prevent future violations of his conditions of transport (should such transport take place in the future).

As regards the violation of Article 6 found in the case of Mr Rakov, the applicant has not applied for the reopening of the civil proceedings concerned.

General measures:

A) Measures taken by the Supreme Court:

On 25 December 2018, the Plenum of the Supreme Court adopted guiding Ruling No. 47 on the consideration of cases arising out of poor conditions of detention (“On Some Issues Faced by Courts When Examining Administrative Cases Related to Violation of Detention Conditions of Persons Detained in Detention Facilities”). It explains in detail how domestic legislation and regulations should be applied by the courts, including in cases concerning transportation conditions, while also highlighting that judges may take into account international standards, including those reflected in Council of Europe documents. The Supreme Court specifically makes reference to Committee of Ministers Recommendations Rec(2006)2 on the European Prison Rules and Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse, as well as to the reports of European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). Most notably, the Supreme Court classifies the conditions during transportation of detainees as conditions of detention in detention facilities.

For mid-February 2020, the Supreme Court intends to organise a seminar with the participation of the presidents of the regional courts on the implementation of the above-mentioned Ruling No. 47 and of the Code of Administrative Proceedings.

Further, the Supreme Court also prepared, published and distributed to judges an updated Summary of Case-Law and Legal Positions of International Treaty and Non-Treaty Bodies on the Issue of Protection of a Person’s Right not to be Subjected to Torture, Inhuman or Degrading Treatment or Punishment. This summary, updated to 30 December 2019, contains indications about the case-law and practice of the European Court, the CPT and the United Nations Human Rights Committee and special rapporteurs (working groups). On 6 February 2020, it was transmitted to the competent state authorities involved in the execution of the Tomov and Others pilot judgment.

B) Regulatory and other measures:

The Ministry of the Interior has taken measures to bring the vehicles used for transportation into conformity with international standards. Most notably, by Order no. 512 of 28 June 2019, it introduced new regulations concerning prison vans, which are used for transportation over short distances (not involving overnight travel). In accordance with these regulations, a prototype of a special prison van was developed, which will have a general cell/compartment for five persons (with 0.54 m² of space per person) and one solitary cell/compartment (measuring 0.73 m²), with the height increased from 164 cm to 179-180 cm; a lighting level of no less than 100 lux; and heating and air conditioning systems. It is planned to equip the Ministry with these new vehicles in the first half of 2020. Another type of van, with an internal space of at least 1.80m², is also undergoing final operational testing, with a view to supplying it to the Ministry by the end of 2020. At the same time, the development of prototypes for two more special-purpose vans, in line with the new above-mentioned Order and international standards, is currently underway.

As regards railway carriages, used for long distance transportation (involving overnight travel), as a result of the work of the Ministries of the Interior, Finance and Economic Development, budgetary allocations were provided (approx. RUB 723.8 million, i.e. approx. EUR 10.3 million) for the purchase of 12 special-purpose wagons. A state contract was signed on 9 December 2019. Another 28 new special wagons are expected to be acquired in 2021-2022, through budgetary allocations to this end that have already been made (approx. RUB 1.8 billion, i.e. approx. EUR 25.722 million).

C) Legislative measures:

On 25 July 2019, the government introduced draft legislative provisions amending Articles 73 and 81 of the Code of Execution of Sentences, with a view to introducing the possibility to send convicted prisoners to serve their sentences in a region in which their relatives reside. The State Duma adopted this draft in the first reading on 11 December 2019. It is expected that, once adopted, this will diminish the need for transporting prisoners, including the length of such transport.

Furthermore, on 27 December 2019, Parliament adopted in the final reading legal provisions introducing a compensatory remedy for poor conditions of detention (in force since 27 January 2020), amending three laws: the Pre-Trial Detention Act, the Code of Execution of Sentences and the Code of Administrative Procedure. The principal changes are:

-       the right to receive compensation for poor conditions of detention does not depend on establishing fault on the part of the authorities;

-       a claim for compensation can be lodged simultaneously with a complaint about poor conditions of detention, with the specificities of these proceedings being explained in detail;

-       the decision of the judge should contain the reasons for awarding compensation or its refusal;

-       within 180 days from entering into force (i.e. from 27 January until 27 August 2020), applicants whose complaints on poor conditions of detention are pending before the European Court can claim compensation before domestic courts in accordance with the new provisions.

D) Publication and dissemination:

The Tomov and Others judgment was translated, widely published and disseminated among the relevant domestic courts (including the Constitutional and Supreme Courts) and authorities (including the Prosecutor General’s Office, the Ministry of the Interior, the Federal Penitentiary Service and the Ministry of Finance). The Office of the Representative of the Russian Federation at the European Court also prepared an analytical statement regarding the European Court’s case-law on conditions of transport which was sent to the competent state authorities.

E) Co-operation activities with the Council of Europe:

Building on previous consultations held in November 2019, further bilateral consultations between representatives from the European Court, the Execution Department, the Federal Penitentiary Service and the Ministry of Justice are planned to take place in Moscow on 18 February 2020. The discussions will focus on the execution of the European Court’s judgments concerning poor conditions of detention, including the Tomov and Others judgment.

Furthermore, a study visit of some 20 staff members of different law-enforcement bodies to the Council of Europe in Strasbourg is planned for March 2020, covering a wide range of issues related to the execution of the judgments of the European Court.

F) Further measures planned:

The authorities indicated that, in view of the recommendations given by the European Court in its Tomov and Others judgment, they are currently working on the issue of taking additional measures to create proper conditions for prisoner transportation; to improve statutory, including departmental, regulations; to provide a complex approach to identifying and resolving problems; to enhance interdepartmental coordination; as well as to further improve the existing judicial and extrajudicial remedies and create new ones.

While introducing an effective judicial compensatory remedy for prisoners’ transportation, the clarifications made by the Supreme Court in its Ruling of 25 December 2018 No. 47 that conditions of detention also cover the conditions of prisoners’ transportation will be taken into account when applying the new Federal Law on the compensatory remedy for poor conditions of detention of 27 December 2019.

In this context, the preparation of an additional action plan is planned for November 2020.

Rule 9 submission:

On 31 January 2020, an NGO (Amnesty International) submitted a detailed communication
(DH-DD(2020)142) setting out its concerns about the practice of the transportation of prisoners between pre‑trial detention centres and court rooms, and from pre-trial detention centres to prison colonies (see also § 82 of the Tomov and Others judgment, referring to the 2017 report annexed to the Rule 9 submission). It also made specific recommendations to address the problems identified.

Analysis by the Secretariat

Given the tight deadline of 9 January 2021 fixed by the Court, it is proposed to focus the present examination only on the new pilot judgment Tomov and Others and to consider the Guliyev group and other similar cases at a later stage.

Individual measures:

All but one of the applicants have been released. Of those released, given that Mr Rakov has not applied for reopening of his civil proceedings, no individual measures are outstanding apart from the payment of the just satisfaction. As regards Mr Barinov, who remains detained, the question of further individual measures is closely linked to the general measures and in particular to the setting-up of effective domestic remedies.

General measures:

It is regrettable that the authorities provided their action plan several weeks past the deadline, as this significantly complicated its assessment and the preparation of the notes by the Secretariat. Nonetheless, it is most welcome to learn that important measures have been planned with a view to executing this and other judgments concerning poor conditions of detention.

In this context, it is recalled that the Court provided detailed guidance as regards possible avenues for improving conditions of transport, notably by reducing the allocation of detainees to remote facilities (see §§ 184-186), reviewing the normative framework and adapting vehicles (see §§ 188-189) and setting up effective domestic remedies with both preventive and compensatory effects (see §§ 190-197). In addition, the Committee’s position expressed during its consideration of the relevant similar cases concerning poor conditions of detention should also be recalled.[2]

In the light of this, it is positive that the authorities intend to address both the origins of the violations as well as remedies.

1) Improving conditions of transport

The draft legislation introduced in July 2019 on the possibility for convicts to serve their sentences in a region near their relatives is of great interest. The authorities could be encouraged to ensure its swift adoption so that the allocation of prisoners to penal facilities can be adjusted in practice. The regulations on a new type of prison van are also of relevance and appear to correspond to the relevant CPT standards.^[3] However it is not clear from the information provided whether the regulations for railway carriages have also been amended. While it may indeed be necessary to acquire new, or additional, railway carriages, it would nonetheless be important to receive clarifications on any possible changes to the normative framework and the adaptation of these carriages as well.

2) Improving domestic remedies

The new compensatory remedy for poor conditions of detention, in force since January 2020, is a welcome development. While it is not clear from the text whether it can also be applied to transport conditions, this would appear to be the case if read in conjunction with the Supreme Court’s Ruling No. 47 of December 2018. The authorities could be asked to clarify this and also to monitor developments in the domestic courts’ practice with a view to proposing additional measures if necessary.

As regards the preventive remedy under the Code of Administrative Practice (in force since September 2015), the European Court’s reservations in relation to such judicial proceedings should be recalled (see notably § 195 of the Tomov and Others judgment). For example, for conditions of transport, judicial proceedings will unlikely be speedy enough to be able to put an end to such an ongoing violation, since a transport usually occurs over a few hours, days or weeks maximum (see also § 150). Consequently, it appears that further measures are required in this regard.

3) Conclusion

The importance of abiding by the deadline fixed by the Court for setting up effective domestic remedies should be stressed, given the number of similar applications pending before the Court and the risk of receiving further large numbers of such complaints. Consequently, an updated action plan should be submitted no later than 10 December 2020. It should also address the violation found by the Court on account of the authorities’ failure to comply with their procedural obligations by refusing to submit the material requested by the Court (see §§ 85-87 and 90 of the Tomov and Others judgment). In these circumstances, close co-operation between the Secretariat and the authorities is highly desirable, including by taking full advantage of the technical assistance the Council of Europe could provide.

Financing assured: YES