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FIRST
SECTION
CASE OF AREFYEV v. RUSSIA
(Application
no. 29464/03)
JUDGMENT
STRASBOURG
4 November
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Arefyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29464/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vitaliy Alekseyevich
Arefyev (“the applicant”), on 1 August 2003.
- The
applicant was represented by Mr R. Shkryuba, a lawyer practising in
Ivanovo. The Russian Government (“the Government”) were
represented by Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the conditions of his
detention in temporary detention facility in Ivanovo had been inhuman
and degrading, that his detention had been unlawful and that the
proceedings by which he had sought to challenge the lawfulness of his
pre-trial detention had not complied with the requirements of Article
5 § 4 of the Convention.
- On
24 October 2007 the President of the First Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lived until his arrest in the town of
Teykovo in Ivanovo Region.
A. Applicant’s arrest and release on a written
undertaking
- On
6 April 2003 the applicant was arrested on suspicion of aggravated
extortion. Two days later an investigator asked the Teykovo Town
Court to remand him in custody. On the same day the Town Court
adjourned consideration of the investigator’s request for
seventy-two hours. The applicant did not appeal.
- On
9 April 2003 the investigator ordered the applicant’s release
on a written undertaking not to leave the town, reasoning as follows:
“The present criminal case was opened on 6 April
2003, at 5 p.m. On the same day at 5.15 p.m. an investigator, Ms S.,
arrested [the applicant] in compliance with Article 91 of the
Russian Code of Criminal Procedure. On 8 April 2003, at 3.15 p.m.,
the applicant was charged under Article 163 § 2 of the Russian
Criminal Code and a decision on bringing a request to a court for
authorisation of [the applicant’s] detention was issued. That
request was examined by the court and by virtue of Article 108 §
3 (7) of the Russian Code of Criminal Procedure [the court] adjourned
the examination of the request until 2 p.m. on 11 April 2003. In his
decision the judge did not mention that [the applicant’s]
detention had been extended.
Due to the fact that [the applicant’s] detention
has expired, he should be released.”
B. Applicant’s placement in custody. Detention
order of 11 April 2003
- On 11 April 2003 the Teykovo Town Court resumed
consideration of the investigator’s request of 8 April 2003 and
authorised the applicant’s placement in custody, finding that
he had been charged with a serious criminal offence, had a criminal
record, was a danger to society, was unemployed and did not have a
permanent source of income. The court concluded that the applicant
was liable to abscond and interfere with the course of justice.
- On
the same day the applicant appealed against the decision of 11 April
2003, arguing that there were no grounds for his placement in
custody. He had a permanent place of residence, had started working
and had no intention of absconding.
- On
15 April 2003 the Ivanovo Regional Court upheld the decision of
11 April 2003, endorsing the Town Court’s reasoning.
C. Detention order of 9 June 2003
- A
transcript of a telephone conversation produced by the Government
reveals that on 5 June 2003 an investigator of the Teykovo town
police department informed the applicant’s lawyer, Mr Shkryuba,
that a request for extension of the applicant’s detention was
to be sent to the Teykovo Town Court on the following day. The
investigator asked for confirmation of the lawyer’s
availability for the court hearing. Mr Skhryuba replied that he would
not be able to attend as he had to take part in a seminar starting on
9 June 2003.
- On 9 June 2003 the Teykovo Town Court extended the
applicant’s detention for twenty-six days, until 6 July 2003,
finding that he had been charged with a serious criminal offence and
had a previous conviction, also that he was unemployed and did not
have a permanent source of income and thus, if released, he was
liable to pervert the course of justice and abscond. The Town Court
noted that by 6 July 2003 the total period of the applicant’s
detention would amount to two months and twenty-six days. The
applicant’s lawyer did not attend the hearing on 9 June 2003.
The record of that hearing provided to the Court by the Government
shows that the Town Court read in open court thirty-two pages of
material presented to it by the investigator and attached to the case
file. The materials comprised records of various investigative
actions, including the previous decisions on the applicant’s
arrest and detention. A court registrar made an entry in the record
stating that the parties had no objections or amendments.
- The applicant appealed. He complained that the
decision of 9 June 2003 had been taken in the absence of his lawyer,
who had not been summoned to the hearing, and that he had not been
provided with copies of the case file materials attached to the
investigator’s application for the extension of the detention.
A letter of 21 June 2003 from the President of the Ivanovo Town Bar
Association was enclosed. The President informed the Regional Court
that the applicant’s lawyer, Mr Shkryuba, had not been summoned
to the hearing of 9 June 2003 as the summons had arrived at the Bar
Association only hours before the hearing, by which time Mr Shkryuba
had departed on an official mission and therefore it had been
impossible to notify him promptly of the hearing.
The
applicant further argued that the maximum authorised two-month period
of his detention had expired on 8 June 2003, taking into account that
he had remained in custody during the three days after his arrest in
April 2003. Thus, his detention from 8 to 9 June had had no
legal basis.
- On
3 July 2003 the Ivanovo Regional Court held an appeal hearing. The
applicant’s lawyer attended. At the end of the hearing the
Regional Court issued a decision upholding the extension order of 9
June 2003. The relevant part of the appeal decision read as follows:
“It follows from the case file materials that the
criminal case requires a certain amount of investigative actions for
which additional time is needed.
At the same time there are no grounds for change or
cancellation of the measure of restraint which was applied to [the
applicant]. [The applicant] is charged with a criminal offence which
belongs to the category of serious [offences]; [he] has previous
convictions [and has had] a suspended sentence; [he] does not have
any source of income [and], if released, [he] could pervert the
course of justice and abscond.
On the basis of the aforementioned, the court correctly
concluded [that it was] possible to extend [the applicant’s]
detention.
It also follows from the case materials that in the
course of the pre-trial investigation [the applicant] concluded an
agreement with counsel, Mr R. Shkryuba, who had been duly notified
about the examination of the present case, which is confirmed by the
case file materials. [He] did not attend the hearing, his failure to
attend being due to his participation in a seminar, in which Mr R.
Shkryuba took part merely as a member of the audience, cannot be
considered a valid reason.
According to a court record, [the applicant]’s
rights prescribed by Article 47 of the Russian Code of Criminal
Procedure were explained to him; he did not submit any requests.
In such circumstances the fact that the case was
examined in the absence of counsel Mr R. Shkryuba cannot be
considered a violation of [the applicant’s] right to defence.”
D. Detention order of 3 July 2003
- On 3 July 2003 the Teykovo Town Court authorised an
extension of the applicant’s detention for an additional
twenty-nine days, that is until 4 August 2003. The Town Court
found no grounds for changing the measure of restraint, holding that
the applicant had been charged with several serious offences, he had
no “official” place of employment, and had a previous
conviction, having received a suspended sentence. The Town Court
noted that all those facts attested to the “criminal
orientation” of the applicant’s personality and that if
released he was liable to reoffend, pervert the course of justice and
abscond. As regards the applicant’s argument that his detention
from 8 to 9 June 2003 had been unlawful, the Town Court held as
follows:
“By virtue of Article 109 § 10 of the Russian
Code of Criminal Procedure [the court] accepts the arguments by the
defence that the three days of [the applicant’s] detention in
the capacity of a suspect (from 6 to 9 April 2003) should be included
in the period of his detention. Thus, the aforementioned three days
should be included in the total period of [the applicant’s]
detention.”
- On
15 July 2003 the Ivanovo Regional Court upheld the detention order of
3 July 2003, supporting the reasoning of the Town Court. The Regional
Court, however, excluded the remarks about the applicant’s
personality from that detention order.
E. Further extensions of detention
- It
appears from the parties’ submissions that after 4 August 2003
the applicant’s detention was regularly extended in view of his
alleged liability to abscond, pervert the course of justice and
reoffend.
F. Conviction
- On
31 October 2003 the Teykovo Town Court found the applicant guilty of
several counts of aggravated robbery and sentenced him to four years’
imprisonment. On 9 December 2003 the Regional Court upheld the
conviction.
G. Conditions of the applicant’s pre-trial
detention
- From
14 April to 29 December 2003 the applicant was detained in temporary
detention facility no. 1 in the town of Ivanovo (hereinafter
“facility no. IZ-37/1” or “the detention
facility”).
- The
Government, relying on a certificate issued on 10 December 2007 by
the director of facility no. IZ-37/1, submitted that during the
period in question the applicant had been detained in three different
cells. Cell no. 135, where he was detained on 14 and 15 April 2003,
measured 30.8 square metres and housed three other detainees. From 15
April to 14 October 2003 the applicant was kept in cell no. 93,
measuring 21.8 square metres and accommodating twenty-two detainees.
From 14 October 2003 until his release the applicant was detained in
cell no. 61. Seventeen other inmates shared 25.3 square metres of
that cell with the applicant. The Government noted that the
applicant, having been provided with a complete set of bedding, had
an individual sleeping place at all times. However, as it follows
from the above-mentioned certificate provided by the director, the
number of inmates indicated by the facility for each cell in which
the applicant had been detained was an average one.
- Citing
the information provided by the director of the facility, the
Government further submitted that the cells received natural light
and ventilation through a large window 1.2 metres long and 0.9 metres
wide. The cells had ventilation shafts and were equipped with lights
which functioned day and night. Each cell was equipped with a
lavatory pan, a sink and a tap for running water. The pan was
separated from the living area by a partition one metre and eighty
centimetres high. Inmates were allowed to take a shower once a week
for forty minutes. Clean bedding was also provided once a week. The
cells were disinfected. Inmates were afforded an hour of outdoor
recreation per day in small yards equipped with wooden benches and
covered by a shed roof against rain and snow. The Government, relying
on the information provided by the director of the facility, further
stated that the applicant was given food “in accordance with
the established norms”. According to the Government, detainees
including the applicant were provided with medical assistance. The
Government furnished a copy of the applicant’s medical record.
- The
applicant did not contest the cell measurements. However, he insisted
that the cells had been severely overcrowded and that he had had less
than two square metres of living space. He stressed that cell no. 93,
where he had spent the major part of his detention in facility no.
IZ-37/1, had ten sleeping places and had usually housed twenty-eight
to thirty-six inmates. Cell no. 61, equipped with twelve bunks, had
also been overcrowded. Inmates had to take turns to sleep. They were
not provided with bedding. The applicant further submitted that the
sanitary conditions had been appalling. The cells were infested with
insects but the management did not provide any insecticide. There was
no artificial ventilation in the cells. It was impossible to take a
shower, as a large number of inmates had to take a shower
simultaneously during a very short period of time. Inmates had to
wash and dry their laundry indoors, creating excessive humidity in
the cells. The lavatory pan was separated from the living area by a
small partition. At no time did inmates have complete privacy. No
toiletries were provided. The food was of poor quality and in short
supply. Everyday outdoor exercise usually lasted less than an hour.
Recreation yards were no more than small boxes measuring ten square
metres, separated from each other with concrete walls and covered
with a metal net. The applicant further argued that medical
assistance was unavailable.
H. Alleged beatings in the detention facility
- According
to the applicant, in April 2003 a group of officers of a
special-purpose squad arrived at the detention facility for the
purpose of rendering practical assistance in maintaining the
detention regime. Their method of assistance was as follows: they
gave detainees ten seconds to leave a cell. Those who failed to
comply were severely beaten up. The applicant alleged that he too had
been beaten up. However, no serious injuries were caused.
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
- Section
22 of the Detention of Suspects Act (Federal Law no. 103 FZ
of 15 July 1995) provides that detainees should be given free food
sufficient to maintain them in good health according to standards
established by the Government of the Russian Federation. Section 23
provides that detainees should be kept in conditions which satisfy
sanitary and hygienic requirements. They should be provided with an
individual sleeping place and given bedding, tableware and
toiletries. Each inmate should have no less than four square metres
of personal space in his or her cell.
B. Placement in custody and detention
- Until
1 July 2002 criminal law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
1. Preventive measures.
- “Preventive measures” or “measures
of restraint” include an undertaking not to leave a town or
region, a personal guarantee, bail and remand in custody (Article 89
of the old CCrP, Article 98 of the new CCrP).
2. Authorities ordering detention
- The Russian Constitution of 12 December 1993 provides
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
Under
the old CCrP, a decision ordering detention could be taken by a
prosecutor or a court (Articles 11, 89 and 96).
The
new CCrP requires a judicial decision by a district or town court on
a reasoned request by a prosecutor, supported by appropriate evidence
(Article 108 §§ 1, 3-6).
3. Grounds for remand in custody
- When
deciding whether to remand an accused in custody, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 89 of the old CCrP). It must also take into account
the gravity of the charge and information on the accused’s
character, his or her profession, age, state of health, family status
and other circumstances (Article 91 of the old CCrP, Article 99 of
the new CCrP).
- Before 14 March 2001, remand in custody was authorised
if the accused was charged with a criminal offence carrying a
sentence of at least one year’s imprisonment or if there were
“exceptional circumstances” in the case (Article 96). On
14 March 2001 the old CCrP was amended to permit defendants to be
remanded in custody if the charge carried a sentence of at least two
years’ imprisonment, if they had previously defaulted, had no
permanent residence in Russia or if their identity could not be
ascertained. The amendments of 14 March 2001 also repealed the
provision that permitted defendants to be remanded in custody on the
sole ground of the dangerous nature of the criminal offence they had
allegedly committed. The new CCrP reproduced the amended provisions
(Articles 97 § 1 and 108 § 1) and added that a defendant
should not be remanded in custody if a less severe preventive measure
was available.
4. Arrest and release following the arrest
- Article
94 of the new CCrP prescribes that on expiration of forty eight
hours following arrest an accused should be released if a decision
authorising his detention has not been issued or if a court has
adjourned consideration of the detention issue. If a decision
authorising an accused’s placement in custody or extension of
his detention has not been issued within forty-eight hours of the
arrest the head of a detention facility should release the accused
after notifying investigating authorities or a prosecutor of the
release.
5. Time-limits for detention
(a) Two types of remand in custody
- The
Codes make a distinction between two types of remand in custody: the
first being “during investigation”, that is while a
competent agency – the police or a prosecutor’s office –
is investigating the case, and the second being “before the
court” (or “during judicial proceedings”), at the
judicial stage. Although there is no difference in practice between
them (the detainee is held in the same detention facility), the
calculation of the time-limits is different.
(b) Time-limits for detention “during
investigation”
- After arrest the suspect is placed in custody “during
investigation”. The maximum permitted period of detention
“during investigation” is two months, but this can be
extended for up to eighteen months in “exceptional
circumstances”. Under the old CCrP, extensions were authorised
by prosecutors of ascending hierarchical levels but they must now be
authorised by judicial decisions taken by courts of ascending levels
(under the new CCrP). No extension of detention “during
investigation” beyond eighteen months is possible (Article 97
of the old CCrP, Article 109 § 4 of the new CCrP).
- The period of detention “during investigation”
is calculated up to the date on which the prosecutor sends the case
to the trial court (Article 97 of the old CCrP, Article 109 § 9
of the new CCrP).
- Access to the materials in the file is to be granted
no later than one month before the expiry of the authorised detention
period (Article 97 of the old CCrP, Article 109 § 5 of the new
CCrP). If the defendant needs more time to study the case file, a
judge, on a request by a prosecutor, may grant an extension of the
detention until such time as the file has been read in full and the
case sent for trial (Article 97 of the old CCrP, Article 109 § 8
(1) of the new CCrP). Under the old CCrP, such an extension could not
be granted for longer than six months.
- Under the old CCrP, the trial court was entitled to
refer the case back for “additional investigation” if it
found procedural defects that could not be remedied at the trial. In
such cases the defendant’s detention was again classified as
“during investigation” and the relevant time-limit
continued to apply. If, however, the case was remitted for additional
investigation but the investigators had already used up all the time
authorised for detention “during investigation”, a
supervising prosecutor could nevertheless extend the detention period
for one additional month, starting from the date on which he or she
received the case. Subsequent extensions could only be granted if the
detention “during investigation” had not exceeded
eighteen months (Article 97).
(c) Time-limits for detention “before
the court”/”during judicial proceedings”
- From
the date the prosecutor refers the case to the trial court the
defendant’s detention is classified as “before the court”
(or “during judicial proceedings”).
- Before 15 June 2001 the old CCrP set no time-limit for
detention “during judicial proceedings”. On 15 June 2001
a new Article, 239-1, entered into force which established that the
period of detention “during judicial proceedings” could
not generally exceed six months from the date the court received the
file. However, if there was evidence to show that the defendant’s
release might impede a thorough, complete and objective examination
of the case, a court could – of its own motion or at the
request of a prosecutor – extend the detention by no longer
than three months. These provisions did not apply to defendants
charged with particularly serious criminal offences.
- The new CCrP provides that the term of detention
“during judicial proceedings” is calculated from the date
the court receives the file to the date on which judgment is given.
The period of detention “during judicial proceedings” may
not normally exceed six months, but if the case concerns serious or
particularly serious criminal offences, the trial court may approve
one or more extensions of no longer than three months each (Article
255 §§ 2 and 3).
6. Proceedings to examine the lawfulness of detention
(a) Detention “during investigation”
- Under
the old CCrP, the detainee or his or her counsel or representative
could challenge a detention order issued by a prosecutor, and any
subsequent extension order, before a court. The judge was required to
review the lawfulness of and justification for a detention or
extension order no later than three days after receipt of the
relevant papers. The review was to be conducted in camera in the
presence of a prosecutor and the detainee’s counsel or
representative. The detainee was to be summoned and a review in his
absence was only permissible in exceptional circumstances, if the
detainee waived his right to be present of his own free will. The
judge could either dismiss the challenge or revoke the pre-trial
detention and order the detainee’s release (Article 220-1). An
appeal to a higher court lay against the judge’s decision. It
had to be examined within the same time-limit as appeals against a
judgment on the merits (see paragraph 96 below) (Article 331 in
fine).
- Under
the new CCrP, an appeal against a judicial decision ordering or
extending detention may be lodged with a higher court within three
days. The appeal court must rule on the appeal within three days of
its receipt (Article 108 § 10).
(b) During judicial proceedings
- Upon receipt of the case file, the judge must
determine, in particular, whether the defendant should be held in
custody or released pending the trial hearings (Article 222 § 5
and Article 230 of the old CCrP, Article 228 (3) and
Article 231 § 2 (6) of the new CCrP) and rule on any application
by the defendant for release (Article 223 of the old CCrP).
- At
any time during the judicial proceedings the court may order, vary or
revoke any preventive measure, including remand in custody (Article
260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such
decision must be given in the deliberation room and signed by all the
judges on the bench (Article 261 of the old CCrP, Article 256 of the
new CCrP).
- An
appeal against such a decision lies to a higher court. It must be
lodged within ten days and examined within the same time-limit as an
appeal against the judgment on the merits (Article 331 of the old
CCrP, Article 255 § 4 of the new CCrP – see paragraph 96
below).
7. Time-limits for trial proceedings
44. Under the old CCrP,
within fourteen days of receipt of the case file (if the defendant
was in custody), the judge was required either: (1) to fix a date for
the trial; (2) to refer the case back for further investigation; (3)
to stay or discontinue the proceedings; or (4) to refer the case to a
court having jurisdiction to hear it (Article 221). The new CCrP
empowers the judge, within the same time-limit, (1) to refer the case
to a competent court; (2) to fix a date for a preliminary hearing; or
(3) to fix a trial date (Article 227). In the latter case, the trial
proceedings must begin no later than fourteen days
after the judge has fixed the trial date (Article 239 of the old
CCrP, Article 233 § 1 of the new CCrP). There are no
restrictions on fixing the date of a preliminary hearing.
- The
duration of the entire trial proceedings is not limited in time.
- Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten days
after it was lodged. In exceptional circumstances or in complex cases
or in proceedings before the Supreme Court this period could be
extended by up to two months (Article 333). No further extensions
were possible.
The
new CCrP provides that the appeal court must start the examination of
the appeal no later than one month after it is lodged (Article 374).
C. Relation between a period of pre-trial detention and
duration of a sentence
- Article 72 §§ 3 and 4 of the Russian
Criminal Code of 1996 provides that the time spent by the accused
person in pre-trial detention and detention pending trial is included
in the duration of the deprivation of liberty pursuant to the
conviction.
III. RELEVANT INTERNATIONAL DOCUMENTS
General conditions of detention
- The
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) visited the Russian
Federation from 2 to 17 December 2001. The section of its Report to
the Russian Government (CPT/Inf (2003) 30) dealing with the
conditions of detention in temporary holding facilities and remand
establishments and the complaints procedure read as follows:
“b. temporary holding facilities for
criminal suspects (IVS)
26. According to the 1996 Regulations
establishing the internal rules of Internal Affairs temporary holding
facilities for suspects and accused persons, the living space per
person should be 4 m². It is also provided in these regulations
that detained persons should be supplied with mattresses and bedding,
soap, toilet paper, newspapers, games, food, etc. Further, the
regulations make provision for outdoor exercise of at least one hour
per day.
The actual conditions of detention in the IVS
establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that
the CPT was pleased to note the progress being made on an issue of
great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in
November 1998, overcrowding was identified as the most important and
urgent challenge facing the prison system. At the beginning of the
2001 visit, the delegation was informed that the remand prison
population had decreased by 30,000 since 1 January 2000. An example
of that trend was SIZO No 1 in Vladivostok, which had registered a
30% decrease in the remand prison population over a period of three
years.
...
The CPT welcomes the measures taken in recent years by
the Russian authorities to address the problem of overcrowding,
including instructions issued by the Prosecutor General’s
Office, aimed at a more selective use of the preventive measure of
remand in custody. Nevertheless, the information gathered by the
Committee’s delegation shows that much remains to be done. In
particular, overcrowding is still rampant and regime activities are
underdeveloped. In this respect, the CPT reiterates the
recommendations made in its previous reports (cf. paragraphs 25 and
30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50
of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the
report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many
prisoners expressed scepticism about the operation of the complaints
procedure. In particular, the view was expressed that it was not
possible to complain in a confidential manner to an outside
authority. In fact, all complaints, regardless of the addressee, were
registered by staff in a special book which also contained references
to the nature of the complaint. At Colony No 8, the supervising
prosecutor indicated that, during his inspections, he was usually
accompanied by senior staff members and prisoners would normally not
request to meet him in private “because they know that all
complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its
recommendation that the Russian authorities review the application of
complaints procedures, with a view to ensuring that they are
operating effectively. If necessary, the existing arrangements should
be modified in order to guarantee that prisoners can make complaints
to outside bodies on a truly confidential basis.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN
FACILITY NO. IZ-37/1
- The
applicant complained that the conditions of his detention in facility
no. IZ-37/1 in Ivanovo had been in breach of Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- In
their observations lodged with the Court on 23 January 2008 the
Government firstly submitted that in view of the applicant’s
failure to raise his grievances before any competent Russian
authority the present complaint should be dismissed for failure to
exhaust domestic remedies. In particular, they argued that the
applicant could have improved his situation by lodging complaints
with the administration of the detention facility or bringing an
action in tort. The Government stressed that there exists an
effective judicial practice of tort actions in the Russian Federation
by which detainees are able to obtain compensation for damage
resulting from their detention in unsatisfactory conditions. The
Government cited a case of a Mr D., who had been awarded 25,000
Russian roubles (RUB) against the Federal
Service for Execution of Sentences in compensation for damage
which had caused him to be infected with
scabies in a remand prison.
- In another line of argument the Government, while
alleging that the applicant’s complaint was manifestly
ill-founded, acknowledged that the domestic sanitary norm of four
square metres of personal space per inmate had not always been
respected in detention facility no. IZ-37/1. However, they stressed
that failure to respect such a sanitary norm should not immediately
lead to a finding a violation of Article 3 of the Convention, as the
Court should take into account the remaining features of the
conditions of the applicant’s decision (lighting, sanitary
conditions, privacy, etc.) which complied with domestic legal
requirements and the guarantees of Article 3 of the Convention.
- In their further observations lodged with the Court on
8 May 2008 the Government submitted that an internal inquiry into the
applicant’s complaints concerning the conditions of his
detention had been carried out. The inquiry confirmed that the
applicant had been detained in overcrowded cells. As a result of the
inquiry a decision had been taken to institute disciplinary
proceedings against officials of the facility responsible for
admitting an excessive number of inmates to the facility. However, in
view of the fact that the officials responsible no longer worked in
the detention facility, the proceedings were discontinued.
- The
applicant insisted that the conditions of his detention had been
inhuman and degrading. He pointed to the Government’s failure
to correctly cite the certificate issued by the facility director in
respect of the number of detainees. The applicant noted that the
director had merely indicated an average number of inmates and had
failed to produce original records listing the exact number of
inmates in the cells on different dates or to indicate the maximum
number of inmates detained together with the applicant.
B. The Court’s assessment
1. Admissibility
- As
to the Government’s objection about the applicant’s
failure to exhaust domestic remedies, the Court
has already rejected identical objections by the Russian Government
in a number of cases regarding the conditions of detention, having
found that neither a complaint to the administration of a detention
facility (see Benediktov v. Russia, no. 106/02, §
29, 10 May 2007, with further references) nor a
tort action (see, for example, Aleksandr
Makarov v. Russia, no. 15217/07,
§§ 82-91, 12 March 2009, and, most recently,
Artyomov v. Russia,
no. 14146/02, § 112, 27 May 2010) could be regarded as an
effective remedy for the purpose of Article 35 § 1 of the
Convention. Moreover, in the case of Nazarov
v. Russia (no. 13591/05, §
77, 26 November 2009) the Court has dealt with the Government’s
argument on the basis of the reference to the award made by the
Russian courts in favour of a Mr D. The Court noted that the problems
arising from the conditions of the applicant’s detention had
apparently been of a structural nature, for which no effective
domestic remedy had been shown to exist, and that the case to which
the Government had referred did not concern detention in overcrowded
cells but rather a detainee’s infection with scabies. The Court
finds no reason to depart from its previous findings in the present
case. Accordingly, it dismisses the Government’s objection as
to non-exhaustion of domestic remedies.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
- The
Court observes that the parties have disputed certain aspects of the
conditions of the applicant’s detention in facility no. IZ-37/1
in Ivanovo. However, there is no need for the Court to establish the
veracity of each and every allegation, because it finds a violation
of Article 3 on the basis of the facts which have been presented to
it and which the respondent Government did not refute.
- The
focal point for the Court’s assessment is the living space
afforded to the applicant in the detention facility. The main
characteristic which the parties did agree upon was the size of the
cells in which the applicant had been detained. The applicant claimed
that the number of detainees in the cells had considerably exceeded
their design capacity. Although in their final observations to the
Court the Government no longer disputed the overcrowding in the
cells, the Court still considers it necessary to address the evidence
presented to it by the Government in support of their description of
the conditions of the applicant’s detention.
- The
Court notes that in their initial observations the Government,
relying on certificates issued by the director of the detention
facility four years after the applicant’s detention in that
facility had come to an end, submitted that the applicant had had an
individual sleeping place at all times. At the same time they did not
refer to any original source of information on the basis of which
their assertion could be verified. In this connection the Court notes
that on several previous occasions when the Government have failed to
submit original records it has held that documents prepared after a
considerable period of time cannot be viewed as sufficiently
reliable, given the length of time that has elapsed (see, among
recent authorities, Novinskiy v. Russia, no. 11982/02, §
105, 10 February 2009, and Shilbergs v. Russia, no. 20075/03,
§ 91, 7 December 2009). The Court is of the view that these
considerations hold true in the present case. The certificates
prepared by the Russian authorities four years after the events in
question cannot be regarded as sufficiently reliable sources of data.
- Accordingly,
having regard to the Government’s admission made in their final
observations (see paragraph 52 above), the Court finds it established
that the cells in facility no. IZ-37/1 were overcrowded. The Court
also accepts the applicant’s submissions
that, owing to the overpopulation in the cells and the resulting lack
of sleeping places, he had to take turns with other inmates to rest.
Given the size of the cells and number of detainees detained in them
at the same time, the Court entertains doubt that there was
sufficient floor space even to pace out the cell.
- Irrespective
of the reasons for the overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its penitentiary
system in such a way as to ensure respect for the dignity of
detainees, regardless of financial or logistical difficulties (see
Mamedova v. Russia,
no. 7064/05, § 63, 1 June 2006).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, §§ 104 et
seq., ECHR 2005-... (extracts); Labzov v. Russia, no.
62208/00, §§ 44 et seq., 16 June 2005; Novoselov v.
Russia, no. 66460/01, §§ 41 et seq., 2 June 2005;
Mayzit v. Russia, no. 63378/00, §§ 39 et seq.,
20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§
97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95,
§§ 69 et seq., ECHR 2001-III). More
specifically, the Court reiterates that it has already found a
violation of Article 3 on account of detention of applicants in
overcrowded conditions in detention facility no. IZ-37/1 (see Korobov
and Others v. Russia, no. 67086/01, §§ 22-30, 27 March
2008).
- Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. Although in the present case there is
no indication that there was a positive intention to humiliate or
debase the applicant, the Court finds that the fact that the
applicant was obliged to live, sleep and use the toilet in the same
cell as so many other inmates for almost a year was itself sufficient
to cause distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention, and to arouse
in him feelings of fear, anguish and inferiority capable of
humiliating and debasing him.
- The
Court finds, accordingly, that there has been a violation of Article
3 of the Convention because the applicant was subjected to inhuman
and degrading treatment on account of the conditions of his detention
in facility no. IZ-37/1 in Ivanovo.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that his detention from 8 to 9 June 2003 had been unlawful. The
relevant parts of Article 5 provide:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. Submissions by the parties
- In
their observations lodged with the Court on 23 January 2008 the
Government first submitted that by virtue of Article 109 of the new
Russian CCrP the initial period of a suspect’s detention may
not exceed two months. They further acknowledged that in violation of
Article 109 § 10 (1) of the new CCrP the Teykovo Town Court had
not included the three days of the applicant’s detention in
April 2003 in the two-month period of his detention authorised on 11
April 2003. However, the Government stressed that the applicant’s
complaint was inadmissible because he had failed to exhaust domestic
remedies. Neither in the hearing on 11 April 2003 nor in his grounds
of appeal against the decision of 11 April 2003 did the
applicant dispute the lawfulness of his detention from 8 to 9
June 2003. It was not until 3 July 2003 that the matter was addressed
by the Town Court. The Government pointed out that the Town Court had
immediately accepted the applicant’s arguments and had added
the period from 8 to 9 June 2003 to the entire period of the
applicant’s detention on remand. In the alternative, the
Government submitted that the applicant was no longer a victim of the
alleged violation as, having acknowledged the mistake, the domestic
courts had corrected it by deducting the period from the applicant’s
sentence.
- In
their further observations lodged with the Court on 8 May 2008 the
Government stressed that the entire period of the applicant’s
detention, including the period from 8 to 9 June 2003, had been
lawful, particularly so because the time spent by the applicant in
pre-trial detention had been included in the term of his sentence.
- The
applicant maintained his complaints, arguing that his detention from
8 to 9 June 2003 had been unlawful. He had raised the complaint
before the domestic courts on a number of occasions. However, they
had been to no avail. In particular, on 3 July 2003 the Regional
Court had completely disregarded his arguments pertaining to that
period of his detention. The applicant accepted the Government’s
assertion that on 3 July 2003 the Town Court had acknowledged the
mistake. However, no redress for the violation of his right had been
offered. The applicant further submitted that the post factum
authorisation of that period of his detention could not legitimise
it. In addition, the inclusion of that period in the sentence was not
“appropriate redress” in the circumstances of the case.
The Court’s assessment
1. Admissibility
(a) Exhaustion issue
- The
Court notes the Government’s submission that the applicant had
failed to complain to the Town Court at the hearing on 11 April 2003,
or to the Regional Court in his grounds of appeal against the
decision of 11 April 2003, that his detention from 8 to 9 June
2003 had been unlawful.
-
In this connection, the Court reiterates that on 11 April 2003 the
Town Court authorised the applicant’s placement in custody. The
decision did not indicate the date on which the authorised period of
the detention was to expire. It also did not contain any indication
as to the method of the calculation of the authorised period of the
applicant’s detention (see paragraph 8 above). However, it
follows from the parties’ interpretation of the relevant legal
provisions of the Russian Code of Criminal Procedure, that the
initial period of the applicant’s detention was to last no more
than two months and was to include the three days of his detention in
April 2003. In these circumstances, the Court is of the opinion that
in the absence of any indication that on 11 April 2003 the Town Court
had erred in application of the domestic law and had incorrectly
calculated the two-month period by failing to include the three days
of the applicant’s detention in April 2003, it was not until 8
June 2003, when, as the parties confirmed, the two-month period of
the detention had expired and no further detention order had been
issued, that the applicant had learnt about the alleged violation of
his right. It is therefore not surprising that he only raised his
grievances before the domestic courts for the first time in June
2003, while arguing against a further extension of his detention. It
follows that the applicant must be considered to have exhausted the
domestic remedies and that the Government’s objection as to
non-exhaustion of domestic remedies should be dismissed.
(b) Victim status
- Further,
the Government argued that the applicant had been deprived of his
victim status when the Town Court had deducted the time spent by the
applicant in pre-trial detention from his sentence.
- The Court observes that it has already addressed the
same argument by the Russian Government in the case of Lebedev v.
Russia (no. 4493/04, §§ 43-48, 25 October 2007). In
particular, having found that by virtue of Article 72 of the Russian
Criminal Code the time spent in custody is automatically deducted
from the final sentence, irrespective of whether or not it was
irregular (see paragraph 47 above), and that the inclusion of the
time spent in custody in the overall time to be served by the
applicant had therefore not been in any way connected to the alleged
violation of Article 5 § 1 of the Convention, the Court
concluded that the applicant could not be said to have lost his
victim status within the meaning of Article 34 of the Convention.
- The
Court sees no reason to depart from that finding in the present case.
The Government’s objection should therefore be dismissed.
(c) Conclusion
- To
sum up, the Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) General principles
- The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer back to national law and state
the obligation to conform to the substantive and procedural rules
thereof. However, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion.
- The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that where deprivation of liberty is concerned it is particularly
important that the general principle of legal certainty be satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see Ječius v. Lithuania, no.
34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Application of the general principles
to the present case
- The
Court once again reiterates that the applicant’s placement in
custody was authorised by the Teykovo Town Court on 11 April 2003. It
follows from the Government’s submissions that the Town Court
was in violation of domestic legal norms by not including the
applicant’s detention in April 2003 in the calculation of the
initial two-month period of his detention. As a consequence of that
omission, despite the fact that (this was not disputed by the
parties) the initial two-month period of the applicant’s
detention had expired on 8 June 2003, taking into account the time
spent by him in detention in April 2003, it was not until 9 June
2003 that the Town Court authorised a further extension of his
detention.
- The
Court reiterates that for detention to be “lawful” within
the meaning of Article 5 § 1, it has to conform to both the
substantive and procedural rules of the domestic law (see paragraph 74
above). The authorised period of the applicant’s detention
expired on 8 June 2003. It was only on the following day that the
Town Court issued the subsequent detention order. In this connection,
the Court observes that the Government did not point to any legal
provision which permitted an accused to continue to be held once the
authorised detention period had expired. The Russian Constitution and
rules of criminal procedure vested the power to order or extend
detention in courts (see paragraph 27 above). No exceptions to that
rule were permitted or provided for, no matter how short the duration
of the detention.
- The
Court further observes that even though the Town Court decision of 3
July 2003 purported to cover, to some extent, the applicant’s
detention from 8 to 9 June 2003, it could not have constituted a
“lawful” basis for his detention in the period preceding
the date of its issue (see Belov v. Russia, no. 22053/02, §
82, 3 July 2008, with further references). The
Russian Constitutional Court emphasised that Russian law did not
contain “any provisions permitting the court to take a decision
extending the defendant’s detention [some time] after the
previously authorised time-limit ha[d] expired, in which case the
person [would be] detained for a period without a judicial decision”
(as cited in the Khudoyorov
judgment, cited below, § 56). As the Court has
already held in a number of cases, any ex post factum
authorisation of detention is incompatible with the “right to
security of person” as it is necessarily tainted with
arbitrariness (see, for example, Khudoyorov v. Russia, no.
6847/02, § 142, ECHR 2005 X (extracts); Solovyev v.
Russia, no. 2708/02, § 99, 24 May 2007; and Shukhardin v.
Russia, no. 65734/01, § 69, 28 June 2007). The Court sees no
reason to reach a different conclusion in the present case. It
follows that the applicant’s detention, in so far as it had
been addressed by the decision of 3 July 2003 in respect of the
preceding period, was not “lawful” under domestic law.
- The Court thus concludes that from 8 to 9 June 2003
there was no formal decision authorising the applicant’s
detention. The applicant was in a legal vacuum that was not covered
by any domestic legal provision (see Shukhardin, cited above,
§ 85). In the absence of any decision that could have served as
a “lawful” basis for the applicant’s detention in
the impugned period, the Court finds that there has been a violation
of Article 5 § 1 (c) of the Convention on account of the
applicant’s detention from 8 to 9 June 2003.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The applicant complained about the procedure relating
to the extension of his pre-trial detention, in particular that his
lawyer had not been able to attend the hearing on 9 June 2003 and
that he had not been served with the materials presented by the
investigator to the Town Court in support of his request for the
extension of the applicant’s detention after 9 June 2003.
The Court will examine this complaint under Article 5 § 4 of the
Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Submissions by the parties
- The
Government, relying on the transcript of the telephone conversation
between the investigator and the applicant’s lawyer, argued
that despite the fact that the written summons had reached the Bar
Association hours before the hearing on 9 June 2003, the lawyer had
been notified of the hearing on 5 June 2003 and immediately made
clear that he was unable to attend. Having been aware of his lawyer’s
inability to appear at the hearing, the applicant did not take any
steps to retain new counsel. The Government stressed that the lawyer
had been duly summoned to the hearing and that his failure to attend
because he wished to take part in a seminar could not justify his
absence.
- The
Government further submitted that the applicant had attended the
hearing, had been given ample opportunity to state his position and
could have asked the Town Court to ensure his legal representation by
another lawyer. However, the applicant did not make use of that
right.
- As
regards access to the documents, the Government stressed that Russian
law does not impose an obligation on investigating authorities to
provide a suspect with copies of materials sent to a court in support
of a request for an extension of the suspect’s detention.
However, by virtue of Article 45 of the Russian Constitution the
applicant had a right to study those materials at the court hearing.
The documents had been examined at the hearing in the presence of the
applicant, who could have commented on them freely, could have raised
arguments in his defence, and so on. The applicant did not request
additional access to the file. Furthermore, those documents were also
the subject of the examination at the appeal hearing before the
Regional Court, when both the applicant and his lawyer attended and
could have raised objections.
- The
applicant, without disputing the fact that on 5 June 2003 his lawyer
had been informed about the hearing on 9 June 2003, argued that the
telephone conversation could not be considered “an official
notification” as it had been done by the investigator by
telephone and in the absence of an official authorisation from the
presiding judge. The official summons reached the Bar Association on
9 June 2003 when the lawyer was no longer able to attend, having left
for a seminar in another town. As regards the inability to study the
investigator’s materials attached to the request for the
extension of the detention, the applicant noted that he had not been
served with the documents which could have enabled him to prepare his
defence in advance, and that not all the materials presented by the
prosecution to the Town Court had been read out at the hearing.
B. The Court’s assessment
1. The alleged refusal of access to the materials
- The
Court reiterates that arrested or detained persons are entitled to a
review bearing upon the procedural and substantive conditions which
are essential for the “lawfulness”, in the sense of the
Convention, of their deprivation of liberty. This means that the
competent court has to examine “not only compliance with the
procedural requirements set out in domestic law but also the
reasonableness of the suspicion grounding the arrest and the
legitimacy of the purpose pursued by the arrest and the ensuing
detention”. A court examining the lawfulness of detention must
provide guarantees of a judicial procedure. The proceedings must be
adversarial and must always ensure “equality of arms”
between the parties, the prosecutor and the detained person. Equality
of arms is not ensured if counsel is denied access to those documents
in the investigation file which are essential in order effectively to
challenge the lawfulness of his client’s detention (see
Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR
1999-II, and Lamy v. Belgium, 30 March 1989, § 29,
Series A no. 151). While national law may satisfy the requirement of
“equality of arms” in various ways, whatever method is
chosen should ensure that the other party is aware that observations
have been submitted and that he or she will have a real opportunity
to comment thereon (see Garcia Alva v. Germany,
no. 23541/94, § 39, 13 February 2001).
- The
Court observes that there is no indication in the present case that
the applicant did not receive a copy of the investigator’s
request for extension. The applicant also did not claim that he had
been denied an opportunity to comment on it. The thrust of his
complaint was directed against the investigator’s alleged
refusal to grant him access to the materials which formed the basis
for the extension request. The Court is, however, not convinced by
the applicant’s allegation.
- Firstly,
the Court reiterates the Government’s argument that it was the
duty on the Town Court to act fairly, as required under Russian law,
which entailed an entitlement to full disclosure of the adverse
material in the Town Court’s possession. As follows from the
minutes of the court hearing of 9 June 2003, the Town Court read out
in open court the documents attached to the investigator’s
request for extension. The applicant did not submit any evidence in
support of his allegation that the content of certain documents had
remained unknown to him. In fact, he was unable to indicate any
document to which he had not been granted access. There is no
indication that the investigator relied on any documents which the
applicant had been unable to inspect.
- The
Court also does not lose sight of the Government’s argument
that it was open to the applicant to ask the Town Court for
additional time to study the materials to amend the line of his
defence, taking into account the content of the documents. In this
respect the Court reiterates its finding in the case of Shops v.
Germany (no. 25116/94, § 46, ECHR 2001 I) that an
accused complaining of denial of access to investigation files must
in principle have duly applied for such access in compliance with the
national law. The Court is of the opinion that the principle is fully
applicable to the circumstances of the present case. It therefore
finds it significant that following the reading out of the documents
the applicant, when questioned by the judge, stated clearly that he
had no requests, amendments or objections.
- In
conclusion, although the Court is concerned that, as the Government
pointed, the applicable provisions of the Russian Code of Criminal
Procedure do not require that the prosecution’s submissions in
support of a defendant’s detention be communicated either to
him or to his lawyer prior to a court hearing, which, in certain
cases, may strip the defendant of an opportunity to effectively
challenge the lawfulness of his detention (see Shops, cited
above, §§ 51-55), it is satisfied that in the circumstances
of the present case the applicant was able to consult the documents,
to comment on the investigator’s request for extension and to
effectively challenge the statements or views which the prosecution
based on these documents (see, for similar reasoning, Sorokin
v. Russia, no. 7739/06, §§
75-77, 30 July 2009, and, by contrast, Nikolova, cited above,
§ 63, and Garcia Alva, cited above, §§ 40
to 43). Accordingly, he had an effective opportunity to challenge the
reasons for his detention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Lawyer’s absence from the hearing
- The
Court notes that from the evidence submitted by the Government, the
authenticity of which was not disputed by the applicant, it appears
that four days prior to the hearing on 9 June 2003 the investigator
informed the applicant’s lawyer that a detention hearing would
be scheduled and asked him to confirm his availability. The lawyer
stressed that he would not be able to attend in view of his
participation in a seminar starting on 9 June 2003. Furthermore,
the Town Court sent a summons to the lawyer, which reached his office
several hours before the hearing. However, the lawyer had already
left for the seminar and the summons could not be served on him in
person. The hearing of 9 June 2003 was held in the applicant’s
lawyer’s absence.
-
Although the parties disputed whether the telephone conversation
could, in fact, constitute official and sufficiently clear
notification of the hearing on 9 June 2003 and whether the
applicant’s lawyer had waived his right to attend the hearing
by departing to the seminar, the Court does not need to settle these
differences of opinion. Having acknowledged that the scope of the
obligation under Article 5 § 4 is not identical in all
circumstances or for every kind of deprivation of liberty, the Court
has already held on a number of occasions that it is the nature of
the proceedings and the capabilities of an applicant which determine
whether legal representation is required by Article 5 § 4 of the
Convention in an oral hearing in the context of an adversarial
procedure (see Waite v. the United Kingdom, no. 53236/99, §
59, 10 December 2002, and Bouamar v. Belgium, 29 February
1988, § 57, Series A no. 129, with further references). For
instance, in the case of Bouamar (cited above) the
Court found it to be essential that a lawyer be present at the
hearing where the applicant, a juvenile, had been remanded in custody
in prison, otherwise an essential safeguard would be denied. The same
findings were made by the Court in the case of Megyeri v. Germany
(12 May 1992, Series A no. 237 A), concerning a person detained
on the ground of mental illness, and the case of Sanchez-Reisse v.
Switzerland (21 October 1986, § 47, Series A no. 107)
pertaining to the detention of a foreigner unfamiliar with the
State’s legal system. In addition, in the case of Woukam
Moudefo v. France no. 10868/84, Commission decision of 8
July 1987), where the appeal concerned complex questions of law, it
was found that the applicant had been unable without a lawyer to
present his case properly and satisfactorily.
- Turning
to the circumstances of the present case, the Court notes that the
issues discussed during the hearing of 9 June 2003 concerned only the
gravity of the charges against the applicant and the risk that he
might pervert the course of justice or abscond. That risk was
formulated by the prosecutor and the court in general terms and its
existence was inferred from the nature and gravity of the charges and
the assessment of the applicant’s character and personal
situation (his employment status and sources of income). Given that
the hearing did not involve any discussion of complex legal or
factual issues, the Court is satisfied that the applicant’s
presence was sufficient to ensure that the proceedings were
adversarial and the principle of equality of arms was respected. The
applicant did not argue that he had been unable to effectively follow
the proceedings or to respond to the prosecution’s arguments.
The same issues had been previously discussed on two other occasions
in the applicant’s and his counsel’s presence and the
applicant had had an opportunity to familiarise himself with the
position of the prosecution and the arguments advanced by his lawyer
in favour of his release. There is no evidence that the applicant’s
circumstances had materially changed since the previous hearings or
that any new arguments were put forward by the prosecution in support
of the applicant’s continued detention. The fact that the
applicant appeared in person before the court, in the circumstances
of the case, afforded him the necessary safeguards.
- Finally,
the Court attributes particular weight to the fact that the applicant
did not object to the hearing being held in his counsel’s
absence (see, for similar reasons, F.W. v. the Netherlands,
no. 15519/89, Commission decision of 6 December 1991).
- Taking into account that no new issues were examined
during the hearing, that the prosecutor did not put forward any new
argument, and that the basis for remand in custody was not amended,
the Court is of the opinion that the proceedings in which the
extension of his detention was examined satisfied the requirements of
Article 5 § 4 (see Duda v. Poland, no. 67016/01, §§
51-52, 19 December 2006).
- It
follows that this complaint must be rejected as being manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 25,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not comment.
- The
Court observes that it has found a combination of violations in the
present case. The Court accepts that the applicant suffered
humiliation and distress on account of the inhuman and degrading
conditions of his detention and the absence of a legal basis for his
detention from 8 to 9 June 2003. In these circumstances, it considers
that the applicant’s suffering and frustration cannot be
compensated for by a mere finding of a violation. Making its
assessment on an equitable basis, and taking into account in
particular, the length of the applicant’s detention in the
inhuman and degrading conditions, it awards him 10,000 euros (EUR) in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant did not make any claims for costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of the applicant’s detention in facility no. IZ-37/1 in Ivanovo
and the unlawfulness of his detention from 8 to 9 June 2003
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
5 § 1 (c) the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten thousand
euros) in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable on the date of the settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
