Court recognised the failure to provide a walk to an arrested person as unlawful

Case No. 2-3321/2010
DECISION In the Name of the Russian Federation
Syktyvkar City Court of the Komi Republic
composed of presiding judge I.I. Oleynik
with secretary E.A. Fipicheva,
with the participation of the representative of the plaintiff E.A. Mezak,
the representative of the defendant S.G. Leskova,
having considered in an open court session in the city of Syktyvkar

on 12 May 2010 the civil case following the statement of Ernest Aleksandrovich Mezak in the interests of Andrei Aleksandrovich Pakhtusov regarding the challenge of the inaction of the Department of Internal Affairs for the city of Syktyvkar,
determined:

E.A. Mezak appealed to the court in the interests of A.A. Pakhtusov with a statement challenging the inaction of the Department of Internal Affairs (UVD) for the city of Syktyvkar, in which he requested that the UVD for the city of Syktyvkar be obligated to ensure the daily realisation of the applicant's right (as a person serving an administrative arrest) to a walk of no less than one hour in the guarded territory of the special detention centre during the daytime.
In the amendment to the requirements, the representative of the applicant, in connection with information received regarding the actual provision of walks from 14.04.2010, requested it be recognised that on 10–13 April 2010, the UVD for the city of Syktyvkar, through its inaction, violated the applicant's right to a daily walk of no less than one hour in the territory of the special detention centre during the daytime.
In the supplement to the statement, the representative of A.A. Pakhtusov indicated that the defendant's ignoring of the corresponding recommendations of the European Committee for the Prevention of Torture should probably be considered a violation of Article 3 of the European Convention on Human Rights.
A.A. Pakhtusov did not appear in the court session, but his representative supported the stated requirements.
The representative of the defendant disagreed with the statement.
The representative of the Ministry of Internal Affairs for the Komi Republic (PK), involved in the case as a third party on the side of the defendant, did not appear in the court session and requested that the case be considered in their absence, having presented the court with written objections to A.A. Pakhtusov's statement.
The court decided to consider the case in the absence of the applicant and the representative of the third party.
Having heard the participants in the process and examined the materials of the case, the court finds the requirements of A.A. Pakhtusov to be subject to partial satisfaction on the following grounds.
In the Russian Federation, the rights and freedoms of man and citizen are recognised and guaranteed according to the universally recognised principles and norms of international law and in accordance with the Constitution of the Russian Federation (Part 1 of Article 17 of the Constitution of the Russian Federation). Universally recognised principles and norms of international law and international treaties of the Russian Federation are, according to Part 4 of Article 15 of the Constitution of the Russian Federation, a constituent part of its legal system.
According to Part 1 of Article 46 of the Constitution of the Russian Federation, judicial protection of his rights and freedoms is guaranteed to everyone.
The Russian Federation, as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms, recognises the jurisdiction of the European Court of Human Rights as mandatory on questions of the interpretation and application of the Convention and the Protocols thereto in case of a presumed violation by the Russian Federation of the provisions of these treaty acts, when the presumed violation occurred after their entry into force in relation to the Russian Federation (Article 1 of the Federal Law dated 30 March 1998 No. 54-FZ 'On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto'). Therefore, the application of the aforementioned Convention by the courts is carried out taking into account the practice of the European Court of Human Rights in order to avoid any violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.
According to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms dated 4 November 1950, ratified by the Russian Federation by Federal Law dated 30 March 1998 No. 54-FZ and which entered into force for the Russian Federation on 5 May 1998, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
In accordance with Article 3 of the Convention and the requirements contained in the rulings of the European Court of Human Rights, the conditions of detention of persons in custody must be compatible with respect for human dignity.
The assessment of the said level is carried out depending on the specific circumstances, in particular the duration of the unlawful treatment of a person, the nature of the physical and mental consequences of such treatment. In some cases, the gender, age, and state of health of the person subjected to inhuman or degrading treatment are taken into account.
From the materials presented to the court, it follows that by the resolution of the magistrate of the Dimitrov judicial district of the city of Syktyvkar dated 09.04.2010, A.A. Pakhtusov was brought to administrative responsibility under Article 12.26, Part 2 of the Code of Administrative Offences of the Russian Federation in the form of administrative arrest for a term of 10 days.
From 09.04.2010 to 19.04.2010, A.A. Pakhtusov was held in the special detention centre for persons arrested under administrative procedure, under the UVD for the city of Syktyvkar, located at the address: Syktyvkar, Sovetskaya St., 63.
At the same time, from 10 to 13 April 2010, A.A. Pakhtusov was not provided with a daily walk. This fact is not disputed by the defendant in the case.
According to Article 32.8 of the Code of Administrative Offences of the Russian Federation, a judge's resolution on administrative arrest is executed by the internal affairs bodies immediately after the issuance of such a resolution. A person subjected to administrative arrest is held in custody in a place determined by the internal affairs bodies. The serving of administrative arrest is carried out in the order established by the Government of the Russian Federation.
By the Decree of the Government of the Russian Federation dated 2 October 2002 No. 726, the Regulations on the procedure for serving administrative arrest were approved, in accordance with which arrested persons are held in custody in special detention centres of internal affairs bodies for holding persons arrested under administrative procedure (special detention centres).
By virtue of point 12 of the Regulations, arrested persons are permitted a walk in the daytime with a duration of no less than one hour in the guarded territory of the special detention centre.
Also, on the basis of point 25 of the Internal Regulations of special detention centres for holding persons arrested under administrative procedure, which are Annex No. 4 to the Order of the Ministry of Internal Affairs of Russia dated 6 June 2000 No. 605dsp, arrested persons held in special detention centres have the right to a daily walk with a duration of no less than one hour.
In this case, in the period from 10 to 13 April 2010 (prior to the submission of the statement under consideration to the court), A.A. Pakhtusov was not provided with the daily walk provided for by the cited regulatory acts, by which the corresponding right of the applicant was violated.
In accordance with Article 255 of the Civil Procedure Code of the Russian Federation, decisions, actions (inaction) of state power bodies, local self-government bodies, officials, state or municipal servants, challenged in the order of civil proceedings, include collegial and individual decisions and actions (inaction) as a result of which: rights and freedoms of a citizen were violated; obstacles were created to the exercise of a citizen's rights and freedoms; or an obligation was unlawfully imposed on a citizen or they were unlawfully brought to responsibility.
The court cannot take into account, as grounds for the refusal to satisfy the requirements of A.A. Pakhtusov, the arguments of the UVD for the city of Syktyvkar and the Ministry of Internal Affairs for the Komi Republic that there are no conditions in the special detention centre for providing walks (there is no walking yard as targeted funds were not allocated for these purposes; the staffing table of the UVD for the city of Syktyvkar does not provide for a sufficient number of staff to ensure walks for arrested persons and their guarding), since regulatory acts regulating the procedure for serving arrest do not provide for such grounds for the refusal to provide a daily walk to arrested persons and, accordingly, the realisation of the specified right by them.
Taking into account the listed circumstances and the cited legal norms, the inaction of the UVD for the city of Syktyvkar in failing to provide A.A. Pakhtusov with a daily walk while being held in the special detention centre for persons arrested under administrative procedure in the period from 10 to 13 April 2010 must be recognised as unlawful.
At the same time, in this case, the court does not perceive any violations of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms in relation to A.A. Pakhtusov, taking into account the specific circumstances established in the case (including information about the duration of the failure to provide the walk and the nature of its consequences, as well as data on the personality of A.A. Pakhtusov from the materials of the administrative case).
Guided by Articles 194–199 of the Civil Procedure Code of the Russian Federation, the court

DECIDED:
Recognise as unlawful the inaction of the UVD for the city of Syktyvkar in failing to provide Andrei Aleksandrovich Pakhtusov with a daily walk while held in the special detention centre for persons arrested under administrative procedure in the period from 10 to 13 April 2010.
The reasoned decision was drawn up on 17.05.2010.
A cassation appeal may be filed against the decision to the Supreme Court of the Komi Republic through the Syktyvkar City Court within 10 days from the moment of the issuance of the decision in its final form.
Presiding Judge I. I. Oleynik