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CASE OF KOROSTELEV v. RUSSIA
CASE OF KOROSTELEV v. RUSSIA
JUDGMENT
STRASBOURG
12 May 2020
FINAL
12/08/2020
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
KOROSTELEV v. RUSSIA JUDGMENT
INTRODUCTION
The case concerns the imposition of reprimands on the applicant on
account of his misconduct in prison – namely, two acts of worship at
night-time, when “sleep without interruption” was prescribed for all
detainees – and the alleged lack of effective remedies to complain about the
disciplinary sanction.
THE FACTS
1. The applicant was born in 1987 and is detained in penal colony
no. IK-18 in the settlement of Kharp, Yamalo-Nenetskiy Region, Russia
(“IK-18”).
2. The applicant, who had been granted legal aid, was represented by
Mr A. Laptev, a lawyer practising in Moscow.
3. The Government were represented by Mr M. Galperin, Representative
of the Russian Federation to the European Court of Human Rights.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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KOROSTELEV v. RUSSIA JUDGMENT
10. At 1 a.m. on 30 July 2012 (11th day of Ramadan) and at 2.53 a.m. on
30 May 2013, the prison guards, while observing the applicant in his cell in
IZ-1 by means of a closed-circuit television camera, noticed he was
performing Salah. They immediately ordered him to return to his sleeping
place, but the applicant did not follow orders.
11. On the same dates – 30 July 2012 and 30 May 2013 – the prison
guards reported those incidents to the governor of IZ-1. They stated that the
applicant had not adhered to the prison’s daily schedule, which prescribed
that a prisoner should sleep at night between 10 p.m. and 6 a.m., and that
the applicant had disregarded their subsequent orders. They alleged that his
conduct had breached the Federal Law on the Detention of Suspects and
Persons Accused of Criminal Offences (no. 103-FZ dated 15 July 1995)
(Федеральный закон от 15 июля 1995 N 103-ФЗ «О содержании под
стражей подозреваемых и обвиняемых в совершении преступлений» –
“the Pre-trial Detention Act”), which provided that each prisoner must
follow a prison’s daily schedule and orders given by prison guards.
12. In reply to the above allegations, the applicant prepared written
“explanations” dated 7 August 2012 and 31 May 2013 respectively. He
stated that night-time sleep was a right, not a duty. Therefore he could spend
the night-time as he wished. He also submitted that night-time worship was
an important ritual prescribed by his religious belief. In addition, in the
explanations of 7 August 2012 he mentioned that it was particularly
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important for him to comply with his religious duty during “the holy month
of Ramadan”. In the explanations of 31 May 2013, the applicant underlined
that his conduct had not disturbed anyone, because he had been detained in
solitary confinement.
13. On 8 August 2012 and 31 May 2013, having examined the
above-mentioned submissions by the prison guards and the applicant, the
prison governor formally reprimanded the latter for a breach of the Pre-trial
Detention Act, specifically for a breach of the prison schedule and for
disregarding the prison guards’ orders to return to his sleeping place. The
disciplinary punishment was imposed on him in accordance with
Section 36 (1) and (2) of the Pre-trial Detention Act, which required all
detainees to comply with prison rules and lawful orders of the detention
authority (see paragraph 29 below).
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KOROSTELEV v. RUSSIA JUDGMENT
19. The applicant submitted that a reprimand had been imposed on him
in IK-18 on 5 March 2018 for an act of worship performed during the
daytime on 28 February 2018.
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KOROSTELEV v. RUSSIA JUDGMENT
28. Section 17 (10) (“The rights of suspects and accused persons”) of the
Pre-trial Detention Act provides that detainees are entitled to eight hours of
sleep at night-time. The investigating authorities may interfere with that
right only in exceptional circumstances, as listed in the Code of Criminal
Procedure.
29. Section 36 (1) and (2) (“The basic duties of suspects and accused
persons”) provides that detainees must respect the rules set out in the
Pre-trial Detention Act and in the internal documents of their detention
facilities. The detainees must also follow lawful orders given by the
detention authorities.
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KOROSTELEV v. RUSSIA JUDGMENT
33. On 23 March 2011 the governor of IZ-1 enacted the remand prison’s
daily schedule, which reads as follows:
“Early morning reveille – 6 a.m.
Wash and rearranging of bedding – 6 to 6.30 a.m.
Breakfast – 6.30 to 7.30 a.m.
Morning inspection – 8 to 9 a.m.
Time set aside for any investigative actions and court hearings – 9 a.m. to
12.30 p.m.
Outdoor exercise – 9 a.m. to 12.30 p.m.
Lunch break – 12.30 to 2 p.m.
Time set aside for any investigative actions and court hearings – 2 to 6 p.m. (until
5 p.m. on Fridays).
Outdoor exercise – 2 to 5 p.m.
Supper – 6 to 7 p.m.
Evening inspection – 8 to 9 p.m.
Preparing for bed – 9.30 to 10 p.m.
Sleep (without interruption) – 10 p.m. to 6 a.m.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
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KOROSTELEV v. RUSSIA JUDGMENT
“1. Everyone has the right to freedom of ... religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
2. Freedom to manifest one’s religion ... shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the protection
of the rights and freedoms of others.”
A. Admissibility
B. Merits
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designed to guarantee prisoners’ rights and to protect their health. The latter
required prisoners to sleep at night. The rule prescribing night-time sleep
was obligatory for each prisoner, including the applicant, who had an
opportunity to pray at different times set aside for that purpose by the prison
schedule. According to the Government, given the variety of religious
beliefs among detainees, it would be highly impractical to draw up
tailor-made schedules for individuals or to make special exceptions to the
general schedule for each group of believers. The Government also
submitted that the prison authority could not tolerate the applicant’s
conduct. A decision not to institute proceedings against a prisoner for a
breach of discipline could result in disobedience among prisoners and lead
to an increase in risks to the personal safety of the prisoners and prison staff.
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66. The applicant complained that he had not been afforded an effective
domestic remedy by which to raise his complaint under Article 9 of the
Convention. He relied on Article 13, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
67. The applicant maintained his complaint.
68. The Government alleged that the complaint is inadmissible.
69. The Court considers that this complaint is neither manifestly
ill-founded nor inadmissible on any other grounds listed in Article 35 of the
Convention. It must therefore be declared admissible.
70. Having regard to the findings in paragraphs 64 and 65 above, the
Court considers that there is no need to examine separately the merits of the
complaint at hand.
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A. Damage
72. The applicant claimed an amount left at the discretion of the Court,
with a minimum of EUR 5,500 in respect of non-pecuniary damage.
73. The Government stated that the applicant’s claim was excessive.
74. The Court awards the applicant EUR 2,600 in respect of non-
pecuniary damage, plus any tax that may be chargeable.
75. The applicant also claimed EUR 8,500 for the costs and expenses
incurred before the Court under the agreement with his representative,
Mr A. Laptev. The applicant asked for the award to be paid into a bank
account of his representative.
76. The Government contended that the costs and expenses had not been
actually incurred by the applicant. They noted that according to the terms of
the legal-assistance agreement between the applicant and his representative,
the costs were to be paid only if the Court delivered a judgment in the
applicant’s case. The Government alleged that such provision could not
guarantee the payment.
77. In the present case the Court is not persuaded by the Government’s
argument that the legal-assistance agreement with the applicant’s
representative could not guarantee the payment in future, because the
Government did not provide the Court with any references to domestic law
or practice suggesting that such an agreement was not enforceable. Taking
into account that, according to the Court’s case-law, an applicant is entitled
to the reimbursement of costs and expenses only in so far as it has been
shown that these are reasonable as to quantum, and that the applicant has
already been granted legal aid, the Court awards him the sum of EUR 2,000
for the proceedings before it, plus any tax that may be chargeable to the
applicant. The award is to be paid into the bank account of the applicant’s
representative.
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C. Default interest
78. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
4. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR 2,600 (two thousand six hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses to
be paid into the bank account of the applicant’s representative;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
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