CCPR/C/141/D/3034/2017

GE.24-14063 (E) 240924 240924

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communication

No. 3034/2017*, **

Communication submitted by:

Andrei Fedortsov (represented by counsel,

Marina Makarova)

Alleged victim:

The author

State party:

Russian Federation

Date of communication:

17 November 2016 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 6 November 2017 (not issued

in document form)

Date of adoption of Views:

9 July 2024

Subject matter:

Conditions of detention; arbitrary arrest and

detention; preparation of defence; fair trial –

legal assistance

Procedural issues:

Exhaustion of domestic remedies; lack of

substantiation

Substantive issue:

Poor conditions of detention in a temporary

detention facility

Articles of the Covenant:

7, 9, 10 (1) and 14 (3) (b) and (d)

Articles of the Optional Protocol:

2 and 5 (2) (b)

1.

The author of the communication is Andrei Fedortsov, a national of the Russian

Federation born in 1973. He claims that the State party has violated his rights under articles 7,

9, 10 (1) and 14 (3) (b) and (d) of the Covenant. The Optional Protocol entered into force for

the State party on 1 January 1992. The author is represented by counsel.

Factual background

2.1

On 17 February 2011, Kurgan City Court sentenced the author to one year and six

months in prison. Prior to his transfer to a prison colony, on 17 February 2011, the author

* Adopted by the Committee at its 141st session (1–23 July 2024).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly

Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah

Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

United Nations

CCPR/C/141/D/3034/2017

International Covenant on

Civil and Political Rights

Distr.: General

25 September 2024

Original: English

CCPR/C/141/D/3034/2017

2

GE.24-14063

was placed in temporary detention facility No. 1 in Kurgan city. Upon arrival at the facility,

he was placed in solitary confinement cell No. 9. The author had a previous knee trauma and

was using an orthopaedic cane and a knee brace, which were taken away by the

administration. This impeded his movement around the cell. The cell measured 2x1 m2. The

window frames had no glass, the temperature inside was below 10°C and the cell floor was

covered with 10–15 cm of snow. On the same date, 17 February 2011, he complained about

the conditions of detention, through a lawyer, to the prosecutor’s office. On the same day, he

was transferred to cell No. 118, which had dim light, partly broken windows and a missing

floor, disclosing wastewater. The cell was infested with insects and rats, which entered

through the holes in the walls. On 20 February 2011, the author submitted another complaint

to the prosecutor’s office. On 7 April 2011, he was transferred to cell No. 116. To prevent

him from staying by the door and complaining to senior officials passing by, the guards put

chlorine under the entry door and poured water on it. The author had to cover his head with

a wet towel so as not to suffocate. The treatment lasted 13 days. On 8 April 2011, the author

wrote a letter complaining about the conditions of detention to the prosecutor’s office. On

20 April 2011, he was transferred back to cell No. 118. Because of the humidity and lack of

proper electric isolation, there were electric discharges throughout in the cell. The author

complained to the prosecutor’s office on the same day. On 3 May 2011, the author was

transferred to the prison colony in Kurgan Region to serve his prison sentence.

2.2

In June 2011, a check of temporary detention facility No. 1 was carried out by the

Kurgan regional prosecutor’s office. Several technical problems were identified. It was noted

in the report on the check that the conditions of cells No. 88, No. 89, No. 97, No. 100, No. 101,

No. 105, No. 106, No. 107 and others did not comply with legislative standards. The light

covers were missing, the window glass and window frames needed replacing and there were

cracks in the ceiling and high levels of humidity. The lack of ventilation caused the presence

of insects. It was concluded in the report that the state of the building was unsatisfactory and

posed a real threat to the lives and health of the detainees and the staff. On 13 July 2011, a

follow-up check was carried out by the Federal Penitentiary Service. A report was produced

by the monitoring commission of the Federal Penitentiary Service, containing a detailed

explanation of the technical problems identified during the check by the Kurgan regional

prosecutor’s office, repairs already effected and those under way. Disciplinary sanctions –

withdrawal of a bonus payment or a reprimand – were applied to the responsible officers of

temporary detention facility No. 1.

2.3

On 8 November 2011, the author was transferred again to temporary detention facility

No. 1 in Kurgan.1 Upon admission, his knee brace and cane were taken away, restricting his

ability to move around. Throughout his stay, he was handcuffed whenever he had to leave

his cell. He was initially placed in cell No. 92, where part of the floor was missing, disclosing

wastewater. The cell was infested with insects and rats. On 11 November 2011, he was

transferred to cell No. 117. He complained to the prosecutor’s office on the same day,

alleging the absence of glass in the window frames, partly broken flooring resulting in the

ingress of wastewater, electric discharges resulting from uncovered electrical cables on wet

walls and flooring, the presence of insects and rats, no ventilation and no toilet partitions. In

such conditions, he was unable to prepare his defence. On 11 March 2012, he was transferred

to cell No. 118, which had even worse conditions, about which he complained to the

prosecutor’s office on 12 March 2012. On 26 October 2012, he was transferred to cell

No. 105 and remained there until 24 April 2013. The conditions of his detention further

deteriorated as he was no longer provided with medical attention, despite his requests. On

10 February 2013, he submitted a complaint to the prosecutor’s office. The author remained

in temporary detention facility No. 1 until 28 April 2013, when he was transferred to a prison.

2.4

On 20 December 2011, while serving his sentence in a prison colony, the author was

charged with murder. On 22 December 2011, an investigator filed a request for the author’s

pretrial detention in temporary detention facility No. 1 to Kurgan City Court. On the same

date, the City Court rejected the request on the ground that the author was already detained

1 According to the information from the State party, the author was transferred to temporary detention

facility No. 1 as a witness in a criminal case on the basis of a Ketovo Interdistrict Investigative

Department request dated 1 November 2011.

CCPR/C/141/D/3034/2017

GE.24-14063

3

in prison. Without submitting an appeal of the court decision, the investigator filed another

request for the author’s detention in temporary detention facility No. 1 to the same court on

23 December 2011, adding several new arguments justifying the need for the transfer.2 The

City Court granted the investigator’s request and ordered the author’s detention in temporary

detention facility No. 1 in Kurgan. On 26 December 2011, the author submitted a cassation

appeal to Kurgan Regional Court, which remained unanswered. His detention in temporary

detention facility No. 1 was extended by Kurgan City Court on 22 February and 25 April

2012 (upheld on appeal by Kurgan Regional Court on 6 March and 10 May 2012) and on

19 June, 23 July and 8 August 2012. On 8 November and 14 August 2013 and on 15 January

2015, the author appealed under the supervisory review procedure the extension of his

detention to the Supreme Court. His appeals were rejected on 5 March and 1 October 2013

and on 25 February 2015.

2.5

On 26 October 2012, Kurgan Regional Court found the author guilty of murder and

sentenced him to life imprisonment on the basis of a verdict by jury trial. On 5 March 2013,

the Supreme Court upheld the conviction on appeal and dismissed the author’s claims,

including the alleged violation of his defence rights.

2.6

Two lawyers represented the author in the trial proceedings before Kurgan Regional

Court, Mr. K and Mr. V. Due to an illness, Mr. K did not attend an additional judicial

investigation on 12 October 2012. He informed the court of his absence in advance. The

author asked to postpone the hearing, claiming that Mr. K was in charge of those parts of his

defence and evidence that was to be examined that day. The Court dismissed the author’s

motion on the ground that the presence of a particular number of counsels was not required

by the law, that the author’s defence at the hearing would be ensured by Mr. V and that

postponing the court hearing would protract the court proceedings and affect the rights of the

parties to the proceedings, as well as witnesses present in the court, and the jury. The author

appealed the decision of Kurgan Regional Court to hold a hearing with only one of his

lawyers present. On 5 March 2013, his appeal was rejected by the Supreme Court. His

requests for a supervisory review were rejected on 1 October 2013 by the Supreme Court and

25 February 2015 by the Deputy Chair of the Supreme Court.

2.7

On 4 July 2014, the author submitted a civil claim to Kurgan City Court for damage

caused by the inhuman conditions of his detention in temporary detention facility No. 1. He

claimed that the poor conditions of detention had caused a deterioration in his health; the dim

light in cells No. 92, No. 105 and No. 118 had affected his eyesight; and the administration

of the facility, knowing about his knee trauma, had removed his orthopaedic cane and knee

brace to make him suffer and reduce his mobility. On 30 September 2014, the City Court

rejected his claim for lack of substantiation.3 Relying on the provisions of the Civil Code

(arts. 1064, 1069 and 1100)4 and Plenary Supreme Court ruling No. 10 of 20 December 1994,

2 In particular, the investigator indicated that the author was of dubious character, had been previously

sentenced for serious crimes, did not have a stable income, did not reside at his registered address,

knew the participants in and witnesses of the crime and was serving a sentence for a lesser crime, to

which a conditional release could be applied, which could allow him to abscond. The investigator also

submitted that investigations involving the author needed to be carried out in Kurgan city.

3 The court established that the author had failed to substantiate his claims that damage had been

caused to his health, since he was regularly seen by medical personnel and treated as needed, which

was confirmed by documents provided by the administration of temporary detention facility No. 1. He

had not submitted claims concerning any mistreatment by officers at the facility, in particular as

regards handcuffing or the removal of his cane and knee brace. He had submitted six claims during

his stay in the facility, concerning the following: (a) the availability of a television in the cell; (b) the

regime of detention; (c) the level of hygiene; and (d) nutrition standards. The Court took into account

the findings of the 15 June 2011 prosecutorial check of temporary detention facility No.1, such as the

unsatisfactory condition of the building and engineering infrastructure, the unsafe electrical wiring,

the need to replace window frames and window glass in some cells, and the humidity levels.

However, the Court concluded that the conditions of detention as described by the author had not

been confirmed, with the exception of the lack of a toilet partition in cell No. 105. Since the author

had been detained alone in that one-person cell, the lack of a partition could not be viewed as

violating his rights to the extent that merited the award of compensation.

4 Damage caused to the person shall be compensated in full by the offender. Offenders are not liable for

damage if they prove that the damage has been caused through no fault of their own. Damage caused

CCPR/C/141/D/3034/2017

4

GE.24-14063

on applying legislation on compensation for moral damages, the Court concluded that the

author had failed to substantiate that the administration of temporary detention facility No. 1

had intentionally caused him damage. On 15 January 2015, the Regional Court upheld the

decision on appeal.

Complaint

3.1

The author claims that he was detained in inhuman conditions in temporary detention

facility No. 1 in Kurgan city from 17 February to 3 May 2011 and from 3 October 2011 to

28 April 2013. He alleges that he was kept there in order to confess guilt. He claims that the

conditions of detention led to the deterioration of his health. He claims that he was arbitrarily

handcuffed whenever taken out of cell. He claims a violation of articles 7 and 10 of the

Covenant.

3.2

The author alleges that he was placed arbitrarily in temporary detention facility No. 1

by a court decision of 23 December 2011 in violation of article 9 of the Covenant. He claims

that the courts did not take into account the fact that the conditions of detention in prison

were better than those in temporary detention facility No. 1 and that the courts based their

decisions solely on the arguments presented by the investigator and the seriousness of the

charges, without taking into account his arguments, such as the state of his health and the

impossibility of absconding, as he was in prison.

3.3

The author alleges that his right to defend himself through the counsel of his choice

under article 14 (3) (d) of the Covenant was violated when Kurgan Regional Court held a

hearing in the absence of one of his lawyers.

State party’s observations on admissibility and the merits

4.1

In a note verbale dated 26 April 2018, the State party submitted its observations on

the admissibility and merits of the communication.

4.2

The State party submits that the author has not appealed under cassation or a

supervisory review procedure the decision of Kurgan City Court of 23 December 2011 to

detain him in temporary detention facility No. 1. His claim under article 9 of the Covenant is

therefore inadmissible under article 5 (2) (b) of the Optional Protocol. According to the State

party, the fact that the author’s submission to the Committee contains the text of a cassation

appeal does not mean that it was submitted to the court.

4.3

Regarding the author’s claim regarding his conditions of detention, the State party

submits that the author failed to appeal under cassation the refusal of Kurgan City Court,

dated 30 September 2014, to grant compensation, as well as the decision of Kurgan Regional

Court, dated 15 January 2015. The author’s claims under articles 7 and 10 of the Covenant

are therefore inadmissible under article 5 (2) (b) of the Optional Protocol.

4.4

On the merits, concerning the author’s claim under article 14 (3) (d) of the Covenant,

the State party indicates that the domestic courts found that the author’s claim that his right

to defence had been violated as one of his lawyers was absent during the hearing on

12 October 2012 was unsubstantiated.

4.5

On the author’s claims about the conditions of detention, the State party submits,

without referring to the source of information, that the cells of temporary detention facility

No. 1 in Kurgan city were in good material condition, including the windows, ventilation,

heating, lights and toilet partitions (except the one-person cell No. 105). It also indicates that

the administration of the facility concluded an agreement with the Kurgan Disinfection

Centre, which had carried out monthly rat and pest control in the cells during the

by lawful actions shall be compensated in accordance with the law (art. 1064). State and municipal

bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or

omissions (art. 1069). Irrespective of the offender’s fault, non-pecuniary damage shall be

compensated for if the damage was caused: (a) by a hazardous device; (b) in the event of unlawful

conviction or prosecution or unlawful application of a preventive measure or unlawful administrative

punishment; or (c) through the dissemination of information damaging to honour, dignity or

reputation (art. 1100).

CCPR/C/141/D/3034/2017

GE.24-14063

5

period 2011–2013. In cases where the process had not been effective, the company had been

obliged to repeat the procedure. Medical personnel monitored the hygiene conditions in the

cells.

4.6

The State party submits that the author received ongoing medical attention and

assistance between 17 February 2011 and 29 April 2013, including outpatient treatment in

the medical ward of temporary detention facility No. 1 and in Kurgan regional No. 3

tuberculosis hospital. A denial of medical assistance to the author was not established.

4.7

The author was handcuffed outside the cell in accordance with Act No. 5473-1, dated

21 July 1993, on detention facilities and penitentiary agencies. Handcuffs are used when a

detained person’s behaviour suggests that they intend to abscond or cause injury to others or

themselves. Considering that the author had been identified as someone with tendencies

towards absconding, assault, self-harm and fraud, the use of handcuffs was deemed a

necessary precaution.

4.8

During the period of detention in temporary detention facility No. 1, six requests from

the author were registered: on 22 November 2011 and 12 April and 12 November 2012

(requests concerning the level of hygiene); on 5 March 2011 (a request for a television in the

cell); and on 24 January 2013 (a request concerning nutrition standards). There were no

complaints from the author regarding mistreatment by the officers of the facility or the

deterioration of his health.

4.9

Regarding the claim for damages proceedings before Kurgan City Court, the State

party indicates that, as the author did not provide evidence, the Court could not confirm the

author’s claims that his cane had been taken from him and that he had been subjected to the

unjustified use of handcuffs. His claims that his health had deteriorated in detention were

also found by the Court to be unsubstantiated, as he failed to present any evidence that he

had sought medical assistance in relation to the health problems caused by the conditions of

detention, including the deterioration of his eyesight. On the contrary, according to a medical

certificate issued by Federal Penitentiary Service medical unit No. 74 on 4 August 2014, the

author had received medical assistance and treatment on numerous occasions. The court

found that the conditions of the author’s detention, as well as his treatment during the

detention in temporary detention facility No. 1 in Kurgan, had not caused him physical or

moral damage.

Author’s comments on the State party’s observations on admissibility and the merits

5.1

On 25 July, 12 November 2018, and 5 December 2018, the author submitted

comments on the State party’s observations on admissibility and the merits. The author

reiterates that his right to defence was violated and provides additional information that, on

12 October 2012, after the hearing, the judge at Kurgan Regional Court postponed the hearing

to 16 October 2012 because of the absence of the author’s second lawyer, Mr. K. The author

submits that this fact confirms that the hearing of 12 October 2012 was held in violation of

his rights.

5.2

With regard to the State party’s argument that he failed to submit a cassation appeal

in the proceedings for compensation of moral damages against the Kurgan City Court

decision dated 30 September 2014 and the decision of Kurgan Regional Court dated

15 January 2015, the author refers to the jurisprudence of the European Court of Human

Rights, according to which there were no effective remedies regarding conditions of

detention in the State party at that time.5 The author points out that Kurgan City Court denied

him compensation on the ground that he had failed to prove that he was subjected to physical

and moral suffering. The author indicates that the burden of proof rested with the plaintiff,

who is a priori in a position of disadvantage compared with the authorities regarding access

5 Reference is made to Ananyev and others v. Russia, Applications No. 42525/07 and No. 60800/08,

Judgment, 10 January 2012.

CCPR/C/141/D/3034/2017

6

GE.24-14063

to evidence that could prove the conditions of detention.6 The State party did not indicate a

remedy that could have prevented the violation and put an end to it.

5.3

Regarding the failure to appeal the Kurgan City Court decision of 23 December 2011

authorizing his detention in temporary detention facility No. 1, the author submits that, once

his State-appointed lawyer had been substituted by a lawyer of his own choosing (Mr. V),

the latter appealed the decision of Kurgan City Court dated 22 February 2012 that extended

the author’s detention. In his cassation appeal, the author asked the court to lift the detention

measure in view of the speculative reasons invoked by the investigator in his original request

for detention on 23 December 2011, such as a possibility of a conditional release from prison.

The author adds that the statistics of the Judicial Department of the Supreme Court indicate

that practically all cassation appeals are denied in cases concerning authorization of detention.

Therefore, this remedy cannot be viewed as effective.

5.4

The author clarifies that the violation of article 9 of the Covenant occurred on two

grounds: (a) by the decision of Kurgan City Court dated 23 December 2011 authorizing the

author’s detention in temporary detention facility No. 1; and (b) by the consecutive,

numerous extensions of the detention period on the same grounds. The author insists that the

courts did not have sufficient reasons to authorize his detention in temporary detention

facility No. 1, because he was already in prison. The prison was situated 33 km from the city

of Kurgan and the author could have been transported if needed for the investigation.

5.5

The author reiterates his claims concerning the inhuman conditions of detention in

temporary detention facility No. 1 and refers to the findings of the prosecutorial check on

15 June 2011 and the follow-up check by the Federal Penitentiary Service on 13 July 2011.

He reiterates his claims that his health deteriorated, indicating that he was only seen by

medical personnel four times. The rest of his claims were ignored, including his request to

be checked by an ophthalmologist. In response to the State party’s submission that he was

handcuffed because it had been placed on his record that he was a person with tendencies to

abscond, assault, self-harm and fraud, he states that that was placed on his record only in

2016, when he had cut his left hand and damaged his veins. He claims that the damage to his

vertebrae, hips and knees was due to him being forced to walk with handcuffs and without

the cane or knee brace. He claims that poisoning with chlorine vapours and a lack of medical

treatment for his heart condition has resulted in the need to take medicine for blood pressure

and different painkillers twice a day for the rest of his life. His eyesight is currently +2.75 in

both eyes.

Additional submissions

From the State party

6.

On 25 December 2019, the State party submitted additional observations. Among

other things, the State party submits that, according to information dated 8 February 2012, it

had been placed on the author’s record that he was a person with tendencies to abscond and

assault staff and as a person with a psychological disorder leading to a risk of self-harm,

aggression towards others and fraud. The State party confirms this information on the basis

of two additional records: (a) a copy of records provided by the Federal Penitentiary Service;

and (b) a copy of certificate No. 231 of 2013 from the author’s personal file. The information

had been removed from his record on 29 April 2013, after his transfer to prison. Based on

this information, the State party submits that the use of handcuffs in the author’s case was

well-grounded and lawful.

From the author

7.

On 10 October 2020, the author reiterated his original claims.

6 The author clarifies that, as of 2015, in accordance with the amended Code of Administrative

Offences, the burden of proof is shared by the parties. At the time of events, however, the burden of

proof rested exclusively with the author.

CCPR/C/141/D/3034/2017

GE.24-14063

7

Issues and proceedings before the Committee

Considerations of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

8.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

8.3

The Committee notes the author’s claim that he was arbitrarily arrested and detained

pursuant to Kurgan City Court decision of 23 December 2011 and subsequent court decisions

authorizing the extension of his detention in temporary detention facility No. 1. The State

party contests the admissibility of this claim on the ground of failure to exhaust domestic

remedies. The Committee notes that the author was already serving a prison sentence when

the decisions in question were adopted by the courts. Therefore, his claim relates, in essence,

to his transfer to temporary detention facility No. 1 and not to a decision to deprive him of

liberty. The author was deprived of liberty by sentence of Kurgan City Court on 17 February

2011. The Committee notes that, while the question of transfer of detainees might raise

questions under the Covenant, the author does not substantiate how the choice of the place

of detention, once the detention had been authorized by a lawful court order, fell under

article 9 of the Covenant. The Committee thus finds the author’s claim under article 9 of the

Covenant inadmissible for lack of substantiation under article 2 of the Covenant.

8.4

The Committee notes the State party’s arguments under article 5 (2) (b) of the

Optional Protocol that the author has not exhausted domestic remedies on his claims under

articles 10 of the Covenant as he failed to submit a cassation appeal against the Kurgan City

Court decision of 30 September 2014 and the Kurgan Regional Court decision of 15 January

2015, denying him compensation for damage he had claimed for the conditions of detention.

The Committee also notes the author’s claim that there were no effective domestic remedies

regarding conditions of detention (see para. 5.2 above).

8.5

The Committee recalls that, under article 5 (2) (b) of the Optional Protocol, authors

are expected to exhaust domestic remedies insofar as such remedies appear to be effective in

the given case and are de facto available to them.7 Taking into account the author’s claim that

there were no effective domestic remedies available to him regarding his conditions of

detention, the Committee should assess whether filing a cassation appeal in civil proceedings

for compensation in cases related to conditions of detention can be considered an effective

remedy and should have been exhausted by the author.

8.6

The Committee notes that Kurgan City Court, in its decision of 30 September 2014,

and Kurgan Regional Court, in appeal decision of 15 January 2015, relied on articles 1064,

1069 and 1100 of the Civil Code (see para. 2.7 above). These provisions establish the

principles on which damage, in particular, moral damage, should be assessed and

compensated by courts. The articles outline two elements that are crucial for the Committee’s

assessment of the effectiveness of the remedy in question. First, compensation is linked to

unlawful action or inaction by the offender. Compensation in the absence of fault by the

offender is possible only on three grounds, none of which is relevant to the general conditions

of detention. The Committee also notes that the Plenary Supreme Court, in its ruling No. 10

of 20 December 1994, to which the domestic courts referred, defines the fault of the offender

as a mandatory condition for liability for causing moral harm. Second, the plaintiff bears the

burden of proof in two respects: (a) that he or she has suffered damage; and (b) that this

damage was caused by unlawful action or inaction by the offender.

8.7

In the Committee’s view, the two preconditions for compensation set out in the Civil

Code make it difficult, if not impossible, to qualify detention in poor conditions as damage

7 See, for example, P.L. v. Germany (CCPR/C/79/D/1003/2001), para. 6.5; Warsame v. Canada

(CCPR/C/102/D/1959/2010), para. 7.4; and V.G. v. Russian Federation (CCPR/C/139/D/2824/2016),

para. 8.6.

CCPR/C/141/D/3034/2017

8

GE.24-14063

under the Civil Code. In the present case, the domestic courts found that the administration

of temporary detention facility No. 1 did not intend to hurt the author or damage his health,

and that his detention in the conditions present in that facility was not aimed at violating his

rights; therefore, there was no damage and no reason to award compensation. The Committee

believes that, in the absence of any alternative remedies, the cassation court would have to

rely on the same legal provisions and would be unlikely to reach a different outcome. This

fact and the absence of any examples of successful cassation proceedings from the State party

in cases related to conditions of detention lead the Committee to conclude that the author did

not have any prospect of success at a cassation appeal.8 The Committee finds that, in the

present case, the cassation procedure under the Civil Procedure Code was not a remedy that

the author was required to exhaust for the purpose of the admissibility of the communication.

The Committee therefore finds that it is not precluded by article 5 (2) (b) of the Optional

Protocol from examining the communication.

8.8

The Committee notes the author’s claims that his detention in poor conditions was

used to make him confess guilt, that his health, in particular his eyesight, deteriorated due to

the poor conditions of detention, and that he was handcuffed arbitrarily whenever he was

taken out of the cell. The Committee also notes that the information on file is not sufficient

for it to consider these claims on their merits. The Committee finds these allegations, which

could fall under article 7 of the Covenant, insufficiently substantiated and inadmissible under

article 2 of the Optional Protocol.

8.9

The Committee also notes the author’s allegations that he was unable to prepare his

defence as a result of his being detained in inhuman conditions in temporary detention facility

No. 1 in Kurgan. The Committee further notes that the author does not provide any details or

documents supporting this claim. It therefore finds his claim under article 14 (3) (b)

inadmissible for lack of substantiation under article 2 of the Optional Protocol.

8.10

The Committee further notes the author’s claim under article 14 (3) (d) of the

Covenant that his right to defence was violated because only one of two contracted lawyers

was present at the Kurgan Regional Court hearing in his criminal case on 12 October 2012.

The Committee notes from the hearing transcript on file that the judge took a decision not to

postpone the hearing after consulting the parties. He mentioned that the hearing had been

scheduled in advance and that the parties were preparing to present their evidence and had

invited witnesses. The judge clearly specified that any outstanding issues could be addressed

at subsequent hearings, should any of the parties submit a motion. Having consulted the

parties, the judge stopped the hearing at the stage of presenting of additional evidence, taking

into account that part of the information was unavailable in view of Mr. K’s absence. Before

he made the decision, the judge verified with the author and his second lawyer, Mr. V, that

they would have sufficient time to prepare by 18 October 2012. At the request of Mr. V, the

court moved the hearing to 16 October 2012. The Committee notes that the author did not

specify how the hearing on 12 October 2012 in the absence of Mr. K affected the overall

outcome of the trial. In this light, the Committee finds the author’s claim under

article 14 (3) (d) of the Covenant inadmissible for lack of substantiation under article 2 of the

Optional Protocol.

8.11

The Committee considers that author has sufficiently substantiated his claims under

article 10 of the Covenant regarding his conditions of detention in temporary detention

facility No. 1. It, therefore, declares those claims admissible and proceeds with its

consideration of the merits.

Consideration of the merits

9.1

The Committee has considered the case in the light of the information submitted to it

by the parties, in accordance with article 5 (1) of the Optional Protocol.

9.2

The Committee notes the author’s arguments that the conditions of detention in

temporary detention facility No. 1 in Kurgan amounted to inhuman and degrading treatment.

The Committee notes that the author provides a detailed account of his conditions of

8 See, mutatis mutandis, Alekseev et al. v. Russian Federation (CCPR/C/134/D/2943/2017, 2953/2017

and 2954/2017), para. 6.6.

CCPR/C/141/D/3034/2017

GE.24-14063

9

detention in various cells in temporary detention facility No. 1 from 17 February to 3 May

2011 and from 8 October 2011 to 28 April 2013. The Committee notes the findings of the

prosecutorial check carried out on 15 June 2011, and a follow-up check and report by the

Federal Penitentiary Service, which, although it did not describe in detail the conditions in

the cells where the author had been held, indicated the generally unsatisfactory condition of

the building, the missing glass in many windows, the unsafe electricity isolation, missing

parts of the floor, the humidity level and the presence of insects in the cells. In the

Committee’s view, these findings, which characterized the detention facilities of temporary

detention facility No. 1 as presenting a real risk for the safety and health of the detained

persons and the staff working there, corroborate the author’s allegations of poor conditions

of detention.

9.3

The Committee recalls that persons deprived of their liberty may not be subjected to

any hardship or constraint other than that resulting from the deprivation of liberty and that

they must be treated humanely, in accordance with the United Nations Standard Minimum

Rules for the Treatment of Prisoners (the Nelson Mandela Rules).9 The Committee considers

that the author’s conditions of detention, as described, violated his right to be treated with

humanity, with respect for the inherent dignity of the human person, and are therefore also

contrary to article 10 (1) of the Covenant.10 For these reasons, the Committee finds that the

conditions of the author’s detention, as described by the author, constitute a violation of

article 10 (1) of the Covenant.

10.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it discloses a violation by the State party of the author’s rights under

article 10 (1) of the Covenant.

11.

Pursuant to article 2 (3) (a) of the Covenant, State party is under an obligation to

provide the author with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. Accordingly, the State party is

obligated to take appropriate steps to provide the author with adequate compensation. The

State party is also under an obligation to take all steps necessary to prevent similar violations

from occurring in the future.

12.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective remedy when it has been

determined that a violation has occurred, the Committee wishes to receive from the State

party, within 180 days, information about the measures taken to give effect to the present

Views. The State party is also requested to publish the present Views and to have them widely

disseminated in the official language of the State party.

9 Bobrov v. Belarus (CCPR/C/122/D/2181/2012), para. 8.2; and Aminov v. Turkmenistan

(CCPR/C/117/D/2220/2012), para. 9.3.

10 Evans v. Trinidad and Tobago (CCPR/C/77/D/908/2000), para. 6.4; Weerawansa v. Sri Lanka

(CCPR/C/95/D/1406/2005), para. 7.4; and Gorbaeva v. Kyrgyzstan (CCPR/C/139/D/3261/2018),

para. 7.9.