Oksana Preobrazhenskaya, lawyer: “I can’t keep quiet about the judgment in the case of Fetisov and Others v Russia!”

Source: HRO.org (info), 11/09/12 

· European Court of Human Rights  · Access to justice 

By Oksana Preobrazhenskaya, lawyer, director of the Centre for International Protection 

On 10th January 2012 the European Court of Human Rights issued a pilot judgment in the case of Ananyev and Others v Russia. The Court recognised that the conditions at pre-trial detention centres, in particular over-crowding, were inhuman and in breach of Article 3 of the Convention. Lawyers practising human rights, detainees and their relatives as well as the press have drawn a great deal of attention to the judgment. 

Exactly a week later, on 17th January, another, no less important decision was issued in the case of Fetisov and Others v Russia, which has gone practically unnoticed. But how wrong this is! 

The Court has ruled that the requirements of Article 13 of the Convention have been breached. At the same time the Court did not find any violation of Article 3 of the Convention, in particular, the detainees’ complaint about improper detention conditions at the pre-trial centres, i.e. cruel and degrading treatment. 

Why is this judgment important and why do we have to draw special attention to it? And most important, what conclusions can be drawn? 

Referring to the facts, the Court ruled that the detention conditions of the applicants were not in accordance with the Minimum Standard Rules for the Treatment of Prisoners, the European Prison Rules and the recommendations of the Committee for the Prevention of Torture. However, the Court also pointed out that the applicants’ detention conditions and the suffering they went through did not reach the minimum cruelty level. These standards have to be followed by all members of the Council of Europe. In some countries these standards can be higher or even considerably higher than the minimum standards. However, regardless of the circumstances, the members of the Council of Europe cannot drop the standards below the minimum ones. 

Acknowledging noncompliance of the detention conditions of Russian pre-trial centres with the minimum standards, but at the same time in not finding any violation of the Convention, the Court produces a double standard. By not acknowledging the violation of the Convention regarding detention conditions at Russian pre-trial centres, the Court encourages the country’s long-standing domestic practice, which includes detention in cells without any access to fresh air and to daylight, without the possibility to take a shower when needed; detainees are forced to relieve themselves in front of their inmates and for years are held on remand in cells which are infested with rodents, bedbugs and lice. 

By not acknowledging the violation of the Convention the Court allows Russia to have standards that are lower than the minimum ones, i.e. Russian inmates cannot and even should not count on those minimum detention conditions which are established for other countries which are members of the Council of Europe. Without any doubt, the authorities of the Russian Federation will use this judgment to justify all the deviations from the minimum standards that are listed above. 

If we leave to one side emotions and speak simply, the applicants in Fetisov and Others v Russia could not prove that the cells in which they were held were overcrowded. Well, how can an ordinary detainee prove his right, if against his words the authorities send kilograms of paperwork with stamps, signatures and other impressive documentation to the Court? On the other hand, is the problem only in over-crowding? Is it the only matter that makes those detained in custody waiting to be found guilty or non-guilty suffer to such an extend as to exceed the minimum cruelty standards? In fact, Fetisov and the other applicants in this claim did not describe their detention conditions sufficiently graphically for the Court to try the case in accordance with Article 3 of the Convention. 

Maybe the Court is right…. However, frankly, it is just beyond understanding why the Court failed to acknowledge a violation of the Convention. 

Indeed, does the Court consider that it is absolutely normal for a human being to relieve themselves in front of others, sleep on dirty bedding, have no possibility to take a shower when needed (and not just once in 10 days)? Indeed, does the Convention allow people to be detained in cells for years waiting for their court decision while being bitten by bedbugs at night? The health of those detained at the pre-trial centres deteriorate due to improper medical aid, foul food, absence of fresh air and daylight and does the Court remain indifferent to this situation? 

Of course, the authorities are happy with the judgment in the case of Fetisov and Others. Now referring to this judgment it will be a lot easier to disagree with arguments made by those applying to the Court with regard to improper detention conditions: ‘You, gentlemen,’ they will say, ‘haven’t frightened anyone enough to claim a violation of the Convention.’ 

The old question – what is to be done? How can we live and work with the contradictory practice of the Court when the authorities have all the power? 

I believe our aim now is to correctly put the question before the European Court. If we cannot prove one hundred per cent that the cells are over-crowded, or if in reality they were not over-crowded, we need to refer to other detention conditions and lay a claim with regard to the violation of the right to private life (Article 8 of the Convention). 

Of course, the right to private life can be limited and the authorities can say, ‘Excuse us, but it is a pre-trial centre, a place of deprivation of freedom and not a health resort.’ But I am not calling for pre-trial centres to be turned into health resorts. I am saying it is impermissible for a country such as Russia, which claims to be civilized, to keep people under such conditions. 

The authorities may not understand this yet, but it must be our joint aim now to convincingly demonstrate the seriousness of the situation and the need to solve it without delay, even if this requires new judgments of the European Court.