THIRD SECTION

CASE OF SOKOLOV v. RUSSIA

(Application no. 63392/09)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Sokolov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 63392/09) 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 Aleksey Veniaminovich Sokolov (“the applicant”), on 1 December 2009.
2.  The applicant was represented by Mr V. Shukhardin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  On 1 December 2016 the complaints concerning the use of a metal cage during the trial, the applicant’s pre-trial detention, restrictions on attending the funerals of his parents and his placement in a remote penal facility were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1973 and lives in Yekaterinburg.
5.  On 13 May 2009 he was arrested on suspicion of armed robbery. On the following day the Verkh-Isetskiy District Court in Yekaterinburg remanded him in custody and set the time-limit until 12 July 2009.
6.  On 13 July 2009 the District Court granted a two-month extension of the detention period. However, on 31 July 2009 the Sverdlovsk Regional Court quashed the extension order as it had been issued outside the authorised detention period, and ordered the applicant’s release.
7.  The applicant was not released. He was not allowed to leave the police ward and was re-arrested on the charge of theft. The arrest record mentioned the charge, without specifying when or where the theft had been committed or why the applicant was suspected of it.
8.  On 2 August 2009 the District Court adjourned the detention hearing for seventy-two hours, at the request from the applicant’s counsel. On 4 August 2009 the District Court issued a detention order which did not set a time-limit for the applicant’s detention or give any assessment to the existence of a “reasonable suspicion” against the applicant.  On 2 September 2009 the Regional Court upheld the detention order on appeal.
9.  Further extensions of the applicant’s detention were granted by the Leninskiy District Court on 29 September, 20 October and 2 November 2009. The last extension order was issued in the absence of the parties. On 25 November 2009 the Regional Court found that extension order unlawful and set it aside, but extended the applicant’s detention for a future period.
10.  On 23 December 2009 the Bogdanovichi Town Court in the Sverdlovsk Region opened the trial and extended the applicant’s detention. The applicant’s appeal against the extension order was rejected by the Regional Court on 11 June 2010.
11.  On 2 March and 22 April 2010 the Town Court extended the applicant’s detention. Each time the court referred to the gravity of the charges and the applicant’s criminal record. The appeals against the orders were rejected on 30 June and 11 June, respectively.
12.  Throughout the trial the applicant was held in a metal cage.
13.  On 13 May 2010 the applicant was found guilty of theft and armed robbery and sentenced to five years’ imprisonment. On 18 August 2010 the Regional Court upheld the conviction but reduced the sentence to three years’ imprisonment.
14.  On 24 June 2010 the applicant’s mother died. His request to be allowed to attend the funeral was rejected by the governor of the IZ-66/1 remand prison and upheld by the courts on the ground that remand prisoners did not have the benefit of a leave of absence under Russian law. When his father died on 5 November 2010, the director of the correctional colony in Sosnovoborsk in the Krasnoyarsk Region also refused his request for a short-term absence, on account of the funeral being held outside of the region where the colony was located.
15.  The Sosnovoborsk colony was located some 2,400 kilometres away from Yekaterinburg where the applicant’s family lived.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
16.  The applicant complained that his detention in a metal cage throughout the trial had been incompatible with Article 3 of the Convention, which reads as follows:
“No one shall be subjected ... to inhuman or degrading treatment ...”
Section 2.01	A.  Admissibility
17.  The Government submitted that all the complaints, including this one, might be belated because the application forms that contained them had been stamped by the Court only on 8 June 2016.
18.  The Court observes that, in view of an inordinately large volume of the applicant’s submissions, on 3 March 2016 it invited the applicant to produce a consolidated application form containing “a statement of the important facts in the chronological order and the complaints which he considered [should] be examined by the Court”. The requested document was received on 8 June 2016. It enclosed copies of the previously submitted application forms of 1 December 2009 and 24 February, 17 May and 7 December 2010. Copies of all the applications forms bearing the Court’s date stamps, including those originally submitted in 2009 and 2010 and those re-submitted in 2016, were communicated to the Government for comments. The Government did not identify any complaints which they believed had been lodged more than six months from the date of the acts or measures complained of or the date of the final decision in the process of exhaustion of domestic remedies. The Court does not find any belated complaints, either.
19.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
20.  The Government did not comment on the merits of the complaint.
21.  The Court notes that the applicant was held in a metal cage for the entire duration of the trial before the Bogdanovichi Town Court.
22.  The Court reiterates that the very essence of the Convention is respect for human dignity and that holding a person in a metal cage during a trial constitutes in itself – having regard to its objectively degrading nature which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – an affront to human dignity in breach of Article 3 (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)).
23.  Consequently, the applicant’s confinement in a metal cage in the courtroom amounted to degrading treatment prohibited by Article 3. There has accordingly been a violation of that provision.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
24.  The applicant complained that his detention in the period from 12 July to 29 September 2009 had fallen short of the lawfulness requirement of Article 5 § 1 of the Convention which reads:
“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 ...”
Section 3.01	A.  Admissibility
25.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
26.  The Government did not comment on the merits of the complaint.
27.  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. It is also required that any arrest or detention have a legal basis in domestic law and that that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see, for a recent restatement of the applicable principles, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 91-92, ECHR 2016 (extracts)).
28.  The Court notes that, following the expiry of the initial two-month detention period on 12 July 2009 (see paragraph 5 above), the applicant was not released and that his further detention on suspicion of armed robbery was not covered by any valid judicial order. The extension order of 13 July 2009 was invalidated on appeal: the Regional Court established that, as a matter of domestic law, such an order could not be made outside the authorised period of detention (see paragraph 6 above). The Court considers that the finding of the Regional Court indicated the existence of a gross and obvious irregularity that rendered the intervening period of detention unlawful (see Mooren v. Germany [GC], no. 11364/03, §§ 72-75, 9 July 2009, and also, for a summary of recent case-law, Yefimenko v. Russia, no. 152/04, §§ 102‑07, 12 February 2013).
29.  As regards the applicant’s immediate arrest and re-detention on suspicion of theft (see paragraphs 7 and 8 above), the Court observes that it was carried out on the basis of a judicial order that did not fix a time-limit for the applicant’s detention or mention any facts or information capable of satisfying an objective observer that he may have committed the theft (see Włoch v. Poland, no. 27785/95, § 108, ECHR 2000‑XI). The Regional Court did nothing to remedy those shortcomings on appeal. It follows that the Russian courts did not make a genuine inquiry into the basic facts underlying the charge and that their presumption of the existence of a “reasonable suspicion” had had no basis in fact (compare Yagublu v. Azerbaijan, no. 31709/13, § 61, 5 November 2015). Accordingly, it has not been demonstrated to the Court’s satisfaction that the applicant was deprived of his liberty on a “reasonable suspicion” of having committed a criminal offence.
30.  There has therefore been a violation of Article 5 § 1 of the Convention.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
31.  The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3 provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
Section 4.01	A. Admissibility
32.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
33.  The Government did not comment on the merits of the complaint.
34.  The Court notes that the period to be taken into consideration lasted for exactly one year, from the date of the applicant’s arrest on 13 May 2009 and until the date of his conviction on 13 May 2010.
35.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
36.  The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court considers that by failing to address specific facts or consider alternative preventive measures, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
37.  There has accordingly been a violation of Article 5 § 3 of the Convention.
Article V.	IV.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
38.  The applicant complained that his appeals against the detention or extension orders of 31 July, 2 November and 23 December 2009 and 2 March and 22 April 2010 had not been considered “speedily” in breach of Article 5 § 4 of the Convention which reads:
“4.  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.”
Section 5.01	A. Admissibility
39.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 5.02	B.  Merits
40.  The Government did not comment on the merits of the complaint.
41.  The Court notes that it took the Regional Court eighteen, twenty‑three, one hundred and seventy, one hundred and twenty, and fifty days to examine the applicant’s appeals against the extensions orders (see paragraphs 9, 10 and 11 above). Nothing suggests that the applicant, having lodged the appeals, somehow contributed to delays in their examination. The Court considers that the amount of time it took the appeal court to consider those appeals was incompatible with the “speediness” requirement of Article 5 § 4 (see Mamedova, § 96, cited above), especially taking into account that the first appeal had been made against the detention order tainted with a gross and obvious irregularity (see paragraph 29 above).
42.  There has therefore been a violation of Article 5 § 4 of the Convention.
Article VI.	V.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF REFUSING LEAVE TO ATTEND THE PARENTS’ FUNERALS
43.  The applicant further complained that he was not allowed to attend the funerals of his parents. He alleged a breach of Article 8 of the Convention which reads:
“1.  Everyone has the right to respect for his private and family life ...
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Section 6.01	A. Admissibility
44.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 6.02	B.  Merits
45.  The Government did not comment on the merits of the complaint.
46.  The Court reiterates that the refusal of leave to attend a relative’s funeral constitutes an interference with the right to respect for family life (see Feldman v. Ukraine (no. 2), no. 42921/09, § 32, 12 January 2012; Lind v. Russia, no. 25664/05, § 92, 6 December 2007, and Schemkamper v. France, no. 75833/01, § 31, 18 October 2005).
47.  Whereas Article 8 does not guarantee an unconditional right to leave to attend a relative’s funeral and even though a detainee by the very nature of his situation may be subjected to various limitations of his rights and freedoms, every such limitation must be nevertheless justifiable as being “necessary in a democratic society” (see Feldman, § 34, and Lind, § 94, both cited above). The authorities can refuse an individual the right to attend the funeral of his parents only if there are compelling reasons for such refusal and if no alternative solution can be found (see Płoski v. Poland, no. 26761/95, § 37, 12 November 2002).
48.  In the instant case the Russian authorities did not give any consideration to the applicant’s individual situation, in particular the fact that he lost both of his parents in quick succession (see paragraph 14 above). Both of his requests for leave were rejected on formal grounds by reference to the Russian law that made no provision either for a leave of absence for a remand prisoner or for attendance of a funeral held outside of the region where the convicted prisoner was detained. In the Court’s view, the formal application of relevant legislative provisions, combined with a lack of genuine desire to find another solution enabling the applicant to attend his mother’s and father’s funerals, was incompatible with the State’s duty to carry out an individualised evaluation of his particular situation and to demonstrate that the restriction on his right to attend a relative’s funeral was “necessary in a democratic society”.
49.  There has therefore been a violation of Article 8 of the Convention on account of the refusal of leave to attend the parents’ funerals.
Article VII.	VI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S PLACEMENT IN A REMOTE FACILITY
50.  Lastly, the applicant complained under Article 8 of the Convention that he had been sent to serve his sentence to a facility located more than 2,000 kilometres away from where his family had lived.
Section 7.01	A. Admissibility
51.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 7.02	B.  Merits
52.  The Government did not comment on the merits of the complaint.
53.  The Court reiterates that placing a convicted prisoner in a remote penal facility, given the long distances involved and the realities of the Russian transport system, affects his ability to maintain contacts with his close family and amounts to an interference with his right to respect for family life (see Polyakova and Others v. Russia, nos. 35090/09 and 3 others, § 81, 7 March 2017, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 837, 25 July 2013). In the instant case the applicant was sent to serve his sentence to a place located more than 2,000 kilometres away from his family’s residence (see paragraph 15 above).
54.  In Polyakova and Others, the Court found that the Russian law did not afford convicted prisoners the adequate legal protection against possible abuses in the matter of their geographical allocation, depriving them of the minimum degree of protection to which they were entitled under the rule of law in a democratic society (ibid., § 117). It held that the interference with their right to respect for family life was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention (ibid., § 118). The Court finds no reason warranting a different conclusion in the instant case.
55.  There has therefore been a violation of Article 8 of the Convention on account of the applicant’s placement in a remote penal facility.
Article VIII.	VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
56.  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.”
57.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage and EUR 3,300 in respect of legal costs and postal expenses, including thirty-six hours’ work by this representative before the Court at the hourly rate of EUR 90.
58.  The Government submitted that Article 41 should be applied in accordance with the Court’s established case-law.
59.  Having regards to the documents submitted, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage and EUR 1,600 in respect of legal costs and expenses, plus any tax that may be chargeable.
60.  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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s confinement in a metal cage during the trial;

3.  Holds that there has been a violation of Article 5 § 1 of the Convention;

4.  Holds that there has been a violation of Article 5 § 3 of the Convention;

5.  Holds that there has been a violation of Article 5 § 4 of the Convention;

6.  Holds that there has been a violation of Article 8 of the Convention on account of the refusal of leave to attend the parents’ funerals;

7.  Holds that there has been a violation of Article 8 of the Convention on account of the applicant’s placement in a remote penal facility;

8.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable into the applicant’s representative’s bank account;
(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;

9.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President