Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan
This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.
The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention.
Conditions of detention: general principles from Ananyev v Russia
The judgment in Ananyev & Ors v Russia, which was handed down a little over a year ago, was an important contribution to the Court’s case law for two reasons. First, because it extracted from the mass of similar cases set of general principles which Article 3 demands compliance with. Second, because it invoked the Court’s ‘pilot judgment’ procedure to initiate a chain of events designed to bring Russian prisons and remand centres into compliance with the Convention.
The Ananyev Court described this issue as a ‘recurrent structural problem’  and annexed a list of 90 other judgments finding violations of Articles 3 and 13 in Russian detention facilities [Annex, p76-80]. The Court said that ‘the set of facts underlying these violations was substantially similar: detainees suffered inhuman and degrading treatment on account of an acute lack of personal space in their cells, a shortage of sleeping places, unjustified restrictions on access to natural light and air, and non-existent privacy when using the sanitary facilities’ . Further, they lacked a domestic forum where they could challenge those conditions, and therefore there was no effective remedy for their Article 3 complaints, leading to violations of Article 13 in each and every case.
The Court took the opportunity presented in Ananyev to extract a set of general principles applicable to conditions in detention facilities, presumably with much broader application than just Russia. With a level of detail and specificity that might surprise readers from jurisdictions more averse to judicial policy-making, the Ananyev Court decreed [at 148] that Article 3 compliance demanded:
(a) each detainee must have an individual sleeping place in the cell;
(b) each detainee must dispose of at least three square metres of floor space; and
(c) the overall surface of the cell must be such as to allow the detainees to move freely between the furniture items.
Failure to satisfy those requirements would create a ‘strong presumption’ that the conditions were degrading treatment contrary to Article 3 . But adequate physical space does not end the enquiry: the Court will naturally consider other elements such as the ‘short duration of outdoor exercise’, usually limited to one hour a day in Russian detention facilities, and whether the physical environment affords a ‘real possibility for exercise’ . Windows fitted to the cells must not have harsh metal shutters—a favourite in Russian remand centres—which unduly interfere with access to natural light and fresh air. Lack of access to light and air were not, in the Court’s view, such significant hardships as the lack of physical space, but they would be regarded as aggravating factors where other hardships such as overcrowding were present .
With respect to sanitation and hygiene, the Ananyev Court said that a ‘truly humane environment is not possible without ready access to toilet facilities or the possibility of keeping one’s body clean’ . The Court strongly criticized the Russian practice of placing lavatory pans in the corner of crowded cells, with little or no screening from other inmates. Moreover, limited access to showers and the absence of ‘sanitary precautions’ such as combating pest infections and check-ups, were ‘indispensible… for the prevention of skin diseases, such as scabies, which appear to have been a common occurrence in Russian remand prisons’ . The Court did not specify whether these hygiene and sanitation measures would be sufficient on their own to ground a violation of Article 3, or whether, like access to natural light and air, they are merely to be regarded as ‘aggravating factors’ where other conditions are present. (The Court’s use of the word ‘inhumane’ at  does not settle the question, as the word ‘inhuman’, which appears in Article 3, has a meaning that is different in important respects: see Jeremy Waldron’s article on this topic). But the force of the Court’s rhetoric with respect to health and sanitation tends to suggest that grossly inadequate provision in those respects would, without more, constitute at least degrading treatment.
A pilot judgment for Russian prisons
Having set out these specific requirements, and given some indication of the weight to be attached to each, the Ananyev Court took the opportunity to offer specific advice to the respondent State, through its ‘pilot judgment’ procedure, as to how the endemic problems in Russian detention centres ought to be addressed. The ‘pilot judgment’ policy derives its authority from the Court’s broad interpretation of Article 46 of the European Convention, which concerns the binding force and execution of the Court’s judgments. Though that Article makes no specific mention of pilot judgments, the Court has extrapolated from it the power to indicate ‘the existence of a general issue or voicing a particular concern’ in the hope of contributing to ‘a better identification of complex structural problems underlying the violations and to the establishment of appropriate solutions’ . The pilot judgment procedure is a relatively new development in the Court’s case law, but if its use in recent months is anything to go by (see Ananyev as well as Aslakhanova v Russia, the latter with respect to Russian authorities’ failure to investigate disappearances) we can expect it to be used increasingly by the Court as a tool to manage its ever-increasing workload.
In Ananyev, the concerns the Court expressed were: first, the ‘close affinity between the problem of overcrowding, which falls to be considered under Article 3 of the Convention, and an excessive length of pre-trial detention [under Article 5]’; and second, ‘possible additional ways of combating the overcrowding through provisional arrangements and safeguards for the admission of prisoners in excess of the prison capacity’ . While recognizing the constraints Russia faced in fixing the problem (lack of resources, lack of transparency in prison management, and the scale of the challenge of updating antiquated facilities and construction of new ones: ) the Court nevertheless observed that there were a number of fairly simple and cost-efficient measures that could be taken immediately, such as removal of metal shutters from windows, adding curtains to the lavatory pans, and increasing the allotted exercise time and the ability of inmates to shower . Despite repeated urging from the Court and the Council of Ministers, those changes had not been made.
Perhaps surprisingly, given the specificity of the measures recommended above, the Court went on to say that ‘any substantive mandate in this area would go beyond its judicial function, given the nature of the issues involved’ . Though it avowedly lacked a ‘substantive mandate’ the Court did not refrain from expressing its view that there should be: an amendment to the legislative framework to reduce the reliance on excessively lengthy detention on remand -; new rules stipulating maximum and operational capacity in detention facilities, to be established by national authorities ; and a review of the powers and responsibilities of the governors of remand centres  among other measures -.
The Ananyev Court did not consider itself similarly constrained by the absence of a ‘substantive mandate’ with respect to the Article 13 issue: that is, the absence of an effective domestic remedy for detainees alleging inhuman or degrading conditions. A number of precise recommendations followed in the judgment, including changes to the ability of prisoners to file a complaint with an supervisory body; court hearings; compensatory orders and sanctions for non-enforcement -. While the Court left it open to Russia to choose whether to introduce new remedies or to amend existing ones (‘it is not the Court’s task to specify what would be the most appropriate way to set up the necessary remedies’: ) the Russian government was given a six-month time limit to produce a binding schedule for the adoption of measures to comply with the Court’s pilot judgment  and a twelve-month time limit to ‘grant adequate and sufficient redress’ to all applicants who had lodged claims with the Court prior to the judgment . Russia’s ‘Interim Report/Action Plan’ for implementation of the Ananyev judgment may be found here.
Admittedly, the Court’s recent findings of Article 3 violations with respect to Russian detention facilities concern periods of detention prior to the Ananyev judgment. Reshetnyak, handed down January 8, 2013, concerned the applicant’s detention in 2006-11. Yefimenko, handed down February 12, 2013, concerned a period of detention that occurred in 2001-3. Zuyev, handed down February 19, concerned detention in 2004-6. But the fact that these matters have taken such a long time to be resolved by the Court is indicative of the ongoing effects of the problem that the pilot judgment in Ananyev had hoped to address: the incredible backlog in repetitive applications concerning substantially the same issue before the Court.