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FIRST
SECTION
CASE OF GOROSHCHENYA v. RUSSIA
(Application
no. 38711/03)
JUDGMENT
STRASBOURG
22 April
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 Goroshchenya 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,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38711/03) 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 Arkadiy Yuryevich
Goroshchenya (“the applicant”), on 17 November 2003.
- The
applicant was represented by Mr D. Grigoryev, a lawyer practising in
Omsk. The Russian Government (“the Government”) were
represented Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been detained in
appalling conditions, that his detention had been unreasonably long
and that the criminal proceedings had not complied with the
“reasonable time” requirement.
- On
21 May 2007 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lived in St Petersburg until his
arrest. He is now serving his sentence in a correctional colony in
Omsk.
A. Arrest and detention during the investigation
- On
4 October 1999 the applicant was arrested on suspicion of fraud. Two
days later he was charged with aggravated robbery. On the following
day the St Petersburg City Prosecutor authorised his detention,
finding that the applicant was liable to reoffend, pervert the course
of justice and abscond, as he was charged with a particularly serious
criminal offence, had been living unregistered in St Petersburg and
in 1995 had been placed on the wanted persons' list owing to his
absconding from an investigation into aggravated fraud. The
prosecution authorities used the same grounds while further extending
on 25 October and 17 December 1999 and 23 June 2000 the
detention of the applicant and his eight co-defendants.
- On 12 May 2000 the applicant was charged with
organisation of a criminal enterprise, twelve counts of robbery,
unlawful possession of a weapon, theft of a weapon, forgery of
documents, fraud, aggravated theft and intentional destruction of
property. On 7 September 2000 he was committed to stand trial before
the St Petersburg City Court.
B. Judicial proceedings and further extensions of
detention.
1. Detention order of 6 October 2000 and trial
proceedings
- On 6 October 2000 the St Petersburg City Court fixed
the first trial hearing for 24 October 2001 and, without providing
any grounds, held that the applicant should remain in custody. The
Government, relying on a letter drafted on 17 July 2007 by the acting
first deputy of the St Petersburg City Court President, stressed that
it had been impossible to schedule the first trial hearing for an
earlier date because the City Court judges had been overburdened with
cases. In particular, 502 cases were pending before twenty judges.
- The first hearing fixed for 24 October 2001, as well as
the following one listed for 27 November 2001 had been adjourned
because the presiding judge was participating in other unrelated
proceedings. The hearing fixed for 10 January 2002 was
rescheduled because a co-defendant was ill and two counsel failed to
appear. The hearing on 25 January 2002 also did not take place owing
to the absence of free courtrooms.
- Between 29 January and 18 March 2002 the City Court
held eighteen hearings. Of four hearings fixed between 18 March and
25 September 2002, two were postponed because the presiding
judge was participating in other proceedings and two were rescheduled
because two co-defendants and a lawyer were ill.
2. Detention order of 1 July 2002 (extension until 30
September 2002)
- On
1 July 2002 a new Code of Criminal Procedure became effective. On the
same day the St. Petersburg City Court extended the applicant's and
his co-defendants' detention until 30 September 2002, holding that
they were charged with especially serious criminal offences and were
liable to reoffend, pervert the course of justice and abscond. The
defendants and their lawyers were not present at the hearing.
- On
7 October 2002 the Supreme Court of the Russian Federation quashed
the decision of 1 July 2002, finding that the City Court had not
summoned the defendants and their lawyers.
- On
the following day the City Court re-examined the detention issue and
retrospectively extended the applicant's detention for three months,
until 30 September 2002. It held that the applicant and his
co-defendants were charged with serious criminal offences and that if
released they could pervert the course of justice, reoffend or
abscond. The City Court did not cite any factual circumstances
supporting its conclusion of the defendants' liability to interfere
with the proceedings, to commit another offence or escape the trial.
- The
two trial hearings fixed for 23 October and 11 November 2002 were
adjourned because counsel was ill. The following hearing was
scheduled for 28 November 2002.
- On
23 December 2002 the Supreme Court quashed the decision of 8 October
2002 in respect of the applicant and ordered a re-examination of the
detention issue. It noted that the applicant's lawyer had been
summoned to the hearing on 8 October 2002. However, he had been ill
and unable to attend. The Supreme Court, reiterating that the City
Court had accepted the reason for the lawyer's absence as valid,
concluded that in such circumstances it should have adjourned the
examination of the detention matter in respect of the applicant.
- The
City Court once again re-examined the detention matter on 24 December
2002 and retrospectively extended the applicant's detention until
30 September 2002, referring to the same grounds as in the
previous detention orders.
- The
applicant and his lawyers, including retained counsel, Mr R.,
appealed against the decision of 24 December 2002.
- On
11 March 2003 the Supreme Court dismissed the applicant's appeal
against the decision of 24 December 2002 because no procedural or
substantive violations had been established and refused to examine
the statement of appeal submitted by Mr R. because the latter did not
attend the appeal hearing.
3. Detention orders of 25 September and 26 December
2002 (extensions until 30 December 2002 and 30 March 2003)
- In
the meantime, on 25 September and 26 December 2002 the St Petersburg
City Court, using collective orders, extended the detention of all
co-defendants, including the applicant, until 30 December 2002 and
30 March 2003, respectively. The reasons for the extensions were
identical to those that had been given in the previous detention
orders. Both detention orders were upheld by the Supreme Court on 9
December 2002 and 12 March 2003, respectively. The Supreme Court
found no violations of substantive and procedural law.
- Between 28 November 2002 and 13 March 2003 the City
Court scheduled twenty-six hearings, of which six were postponed to
obtain attendance of witnesses and victims, seven were adjourned
owing to counsel's illness or inability to attend, four were
rescheduled because defendants were not brought to the court-house
from the detention facility and one was fixed for a later date to
allow defendants to study new materials presented by the prosecution.
4. Detention order of 13 March 2003 (extension until 30
June 2003)
- On
13 March 2003 the St Petersburg City Court extended the applicant's
and his co-defendants' detention until 30 June 2003. It noted that
the defendants were charged with particularly serious criminal
offences, certain “episodes of criminal activity” had not
yet been examined in open court and the defendants were still liable
to abscond and pervert the course of justice. The trial hearing fixed
for 13 March 2003 was rescheduled for 2 April 2003. On 26 May
2003 the Supreme Court examined the grounds of the applicant's appeal
against the decision of 13 March 2003 and upheld the decision.
- Between 2 April and 24 June 2003 the City Court listed
twenty-nine hearings, of which two were postponed because the
defendants were not transported to the court-house, two hearings were
adjourned owing to the prosecutor's or counsel's illness and one was
rescheduled because victims and witnesses failed to appear.
5. Detention order of 24 June 2003
- On
24 June 2003 the St Petersburg City Court extended the applicant's
and his co-defendants' detention, holding that they were charged with
serious criminal offences and were liable to abscond. It appears that
on an unspecified date the detention order was upheld by the Supreme
Court.
6. Conviction
- At
the hearing on 25 June 2003 the applicant unsuccessfully asked the
St. Petersburg City Court to invite his non-marital partner as a
“public defender” in the proceedings.
- Of
four hearings fixed between 26 June and 7 July 2003, three were
adjourned due to a lawyer's illness.
- On
7 July 2003 the St Petersburg City Court held that another lawyer
should be appointed to replace the frequently ill counsel. The new
lawyer was afforded ten days to study the case file.
- On
14 July 2003 the applicant complained to the City Court that he had
been ill-treated in a detention facility. The City Court referred the
complaint to the St. Petersburg City Prosecutor, who on 11 December
2003 dismissed it as unsubstantiated and informed the applicant of
his right to appeal against that decision to a higher-ranking
prosecutor or a court. No appeal followed.
- According
to the applicant, on the day of a court session reveille was at 5 or
6 a.m. Inmates were brought to a small room of 6 square metres where
they were kept for several hours. The room was cold in winter. It was
dirty and poorly lit. At about 9 a.m. transportation of inmates to
the courthouse began. Inmates were placed into an overcrowded van and
transported in inhuman conditions for many hours; the van called in
on the way at several courthouses until the inmates reached their
destination. The inmates received no food for the entire day.
- On
21 July 2003 the St Petersburg City Court found the applicant guilty
of aggravated robbery and fraud and sentenced him to twelve years'
imprisonment. The City Court discontinued the proceedings in respect
of the remaining charges either because the prosecution had dropped
the charges or the limitation period had expired. It based its one
hundred and thirty-four-page judgment on statements by numerous
witnesses, victims and defendants who had been heard in open court,
material evidence and expert opinions. The City Court, with the
applicant's consent, read out statements by three witnesses who had
not been heard in open court. Those statements were made during the
pre-trial investigation. The applicant was represented by retained
counsel who had assisted him throughout the criminal proceedings and
a court-appointed lawyer.
- On
15 January 2004 the Supreme Court examined the appeals lodged against
the judgment of 21 July 2003. It discontinued the proceedings in
respect of the fraud charges because the limitation period had
expired and upheld the remaining conviction. The Supreme Court
reduced the applicant's sentence to eleven years' imprisonment.
- On
21 June 2007 the Kuybyshevskiy District Court of Omsk, having
established that the applicant “had definitely taken his first
steps on the road to improvement”, authorised his release on
probation. The management of the correctional colony supported that
finding. The applicant was released on 4 July 2007, after the
decision of 21 June 2007 had become final.
C. Conditions of the applicant's detention
- From
14 October to 10 December 1999 the applicant was detained in facility
no. IZ-47/1 in St Petersburg, commonly known as Kresty. On
10 December 1999 he was transferred to facility no. IZ-47/4 in
St Petersburg, where he was kept until 3 April 2004.
- According
to the applicant, the general conditions of his detention in those
facilities were similar. Relying on written statements by his former
fellow inmates, he argued that he had been detained in three
different cells in facility no. IZ-47/1 and ten different cells in
facility no. IZ-47/4. The cells had six sleeping places and housed
from eight to twenty-five inmates. Given the lack of beds, inmates
slept in shifts. The sanitary conditions were unsatisfactory. The
lavatory pan was not separated from the rest of the cell. At no time
did inmates have complete privacy. Anything the applicant happened to
be doing – using the toilet, sleeping – was subject to
observations by warders or inmates. The cells were infected with
bedbugs and lice but the administration did not provide any
insecticide. Windows, measuring 0.6 square metres, were covered with
thick metal bars that blocked access to natural light and fresh air.
The bars were only removed in February 2003. In addition, only four
cells had glazed windows. It was extremely cold in winter and was
hot, stuffy and excessively damp in summer. There was no artificial
ventilation. Inmates had an hour's daily exercise. On his admission
to a detention facility he was given a mattress and a thin blanket.
The food was of poor quality. Inmates were allowed to take a shower
three times a month. The applicant contracted several infectious skin
diseases. Medical assistance was not provided as the facilities
lacked necessary medicines and encouraged inmates' relatives to bring
them.
- The
Government, relying on certificates issued in July 2007 by the
directors of the detention facilities, submitted that in facility no.
IZ-47/1 the applicant had been detained in three different cells
measuring 7.6 square metres and equipped with six sleeping places. In
facility no. IZ-47/4 he stayed in nine different cells, measuring
from 6.6 to 30.5 sq. m. On days when the applicant was to be
transferred to a courthouse for trial hearings he was taken to
“gathering cells” which measured 6.6 square metres. The
Government did not provide information on a number of sleeping places
in the cells in which the applicant had been kept in facility no.
IZ-47/4. They also stressed that no information on the number of
inmates in the both facilities was available as the documents had
been destroyed. However, according to the Government, the applicant
had an individual sleeping place at all times.
- Citing
the information provided by the directors of the facilities, the
Government further submitted that the cells received natural light
and ventilation through windows which had been glazed. Cells in
facility no. IZ-47/1 had one window 1 metre wide and 1.1 metre long.
The smaller cells in facility no. IZ-47/4 were equipped with one
window and the bigger cells had two windows of the same size of 0.88
square metres. At the inmates' request window glass was removed in
summertime and put back in when the temperature outside decreased.
The windows were covered by thick bars with “eyelashes”,
that is, slanted plates approximately two centimetres apart welded to
a metal screen. In compliance with the recommendations of the Russian
Ministry of Justice issued on 25 November 2002, the latter
construction was removed from the windows on an unspecified date in
2003. The cells had ventilation shafts. The heating system in the
both detention facilities functioned properly. The cells were
equipped with lamps which functioned day and night. Each cell was
equipped with a lavatory pan, a sink and a tank with potable water.
The pan was placed 1.5 metres from a dining table and was separated
from the living area by a partition. Inmates were allowed to take a
shower once a week. Each inmate was given at least fifteen minutes to
take a shower. The cells were disinfected. 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” three times a day. As follows from
medical documents presented by the Government, since his placement in
detention facility no. IZ-47/4 the applicant gained 21 kilograms,
weighing 85 kilograms in December 1999 and 106 kilograms in May 2004.
According to the Government, detainees including the applicant were
provided with medical assistance. They had regular medical check-ups,
including X-ray examinations, blood tests, and so on. In November
1999 the applicant requested medical assistance, complaining of pain
in the right elbow. A preliminary diagnosis of osteoarthritis was
made. However, further medical examinations and specific tests did
not confirm that diagnosis. The Government further insisted that the
applicant's allegations that he had contracted skin diseases were
false. They supported their submissions with a copy of the
applicant's medical record and various medical certificates.
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, 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. 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).
5. 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 may be lodged with a higher court within
three days against a judicial decision ordering or extending
detention. 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).
6. Time-limits for trial proceedings
55. Under the old CCrP,
within fourteen days after receipt of the case file (if the defendant
was in custody), the judge was required either: (1) to fix the trial
date; (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).
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
- The
applicant complained that the conditions of his detention in
detention facilities nos. IZ-47/1 and IZ-47/4 in St Petersburg 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
- The
Government, while alleging manifestly ill-founded character of the
applicant's complaint, acknowledged that the domestic sanitary norm
of four square metres of personal space per inmate had not been
respected in detention facility no. IZ-47/1. As regards facility no.
IZ-47/4, the Government stressed that the applicant's claims were not
supported by any evidence. They further argued that the domestic
authorities were not the only ones liable for the lack of relevant
data, showing the number of inmates in the detention facilities. It
was also open to the applicant to summon the domestic courts'
assistance in obtaining evidence in support of his allegations of
poor conditions of detention.
- The
applicant insisted that the conditions of his detention had been
inhuman and degrading. He further noted that in the absence of
measuring instruments he had been unable to correctly assess the size
of the cells in which he had been detained in both detention
facilities. He was however prepared to accept that the Government's
submissions in respect of that aspect of his detention were accurate.
In addition, the applicant argued that his weight gain was the result
of the extremely cramped conditions of his detention, in which lack
of personal space was coupled with lack of physical exercise and
low-quality high-calorie food.
The Court's assessment
1. Admissibility
- The
Court notes from the outset that even though the applicant has been
detained in two different detention facilities, it will nevertheless
examine the issue of the conditions of the applicant's detention from
14 October 1999 to 3 April 2004, without dividing it into
separate periods, given the continuous nature of the alleged
violation, the identical description of the general conditions of the
detention and the allegation of severe overcrowding as the main
characteristic of conditions in the both detention facilities (see
Guliyev v. Russia, no. 24650/02, §§ 31-33,
19 June 2008; Buzhinayev v. Russia,
no. 17679/03, § 23, 15 October 2009; and, most recently,
Nazarov v. Russia,
no. 13591/05, § 78, 26 November 2009).
- 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 facilities nos. IZ-47/1
and IZ-47/4 in St Petersburg. 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 have
failed to refute.
- The
focal point for the Court's assessment is the living space afforded
to the applicant in the detention facilities. The main
characteristic which the parties did agree upon in principle was the
size of the cells in which the applicant had been detained. The
applicant, supporting his account with the inmates' written
statements, claimed that the number of detainees in the cells had
considerably exceeded their design capacity. The Government
disagreed.
- The
Court notes that the Government, citing destruction of the relevant
documents, were unable to indicate the exact number of inmates
detained together with the applicant. However, relying on
certificates issued by the directors of the two detention facilities
more than six and three years respectively after the applicant's
detention in those facilities had come to an end, the Government
submitted that the applicant had an individual sleeping place at all
times. In this connection the Court notes that on several previous
occasions when the Government have failed to submit original records
the Court 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 more than six and three years
respectively after the events in question cannot be regarded as
sufficiently reliable sources of data. The Court is therefore not
convinced by the Government's submission.
- In
this connection the Court reiterates that Convention proceedings,
such as those arising from the present application, do not in all
cases lend themselves to a rigorous application of the principle
affirmanti incumbit probatio (he who alleges something must
prove that allegation), as in certain instances the respondent
Government alone have access to information capable of corroborating
or refuting allegations. A failure on a Government's part to submit
such information without a satisfactory explanation may give rise to
the drawing of inferences as to the well-foundedness of the
applicant's allegations (see Ahmet Özkan and Others
v. Turkey, no. 21689/93, § 426, 6 April 2004).
- Having
regard to the principles cited above, together with the fact that the
Government did not submit any convincing relevant information, the
Court accepts the applicant's argument that the cells in facilities
nos. IZ-47/1 and IZ-47/4 where he had been detained for four and half
years were overcrowded. In this connection, the Court also reiterates
the Government's admission that even the domestic standard of a
minimum of four square metres per detainee (see paragraph 36 above)
was not met in the detention facility no. IZ-47/1, given the size of
the cells and the number of sleeping places.
- 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 in a number of cases it has already found a violation
of Article 3 on account of detention of applicants in overcrowded
conditions in detention facility no. IZ-47/1 (see Andrey
Frolov v. Russia, no. 205/02, §§ 3-51, 29 March
2007; Gusev v. Russia, no. 67542/01, §§ 51-61, 15
May 2008; and Seleznev v. Russia, no. 15591/03, §§
38-48, 26 June 2008).
- The
Court notes that the applicant's situation resulting from
insufficient personal space was further exacerbated by the fact that
he was not allowed to shower more than once a week during the entire
period of his detention. Furthermore, the cells in which the
applicant was held had no window in the proper sense of the word. At
least until the beginning of 2003 they were covered with a layer of
thick bars with so-called “eyelashes”. That arrangement
cut off fresh air and also significantly reduced the amount of
daylight that could penetrate the cells (see, for similar reasoning,
Aleksandr Makarov v. Russia,
no. 15217/07, § 96, 12 March 2009, and, more
recently, Shilbergs, cited above, § 97).
- The
Court observes that in the present case there is no indication that
there was a positive intention to humiliate or debase the applicant.
However, 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 in these unsatisfactory conditions 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 facilities nos. IZ-47/1 and 47/4 in St Petersburg from 14 October
1999 to 3 April 2004.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention was
unreasonable, in breach of Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial.”
A. Submissions by the parties
- The
Government claimed that that the length of the applicant's detention
had not been excessive. The extensions of the detention had been
necessary in the circumstances of the case, in particular taking into
account the gravity of the charges against the applicant and the risk
of his obstructing the examination of the case and absconding if
released. The Government stressed that the investigating and judicial
authorities had exhibited particular diligence in conducting the
criminal proceedings against the applicant. The criminal case was
extremely difficult, involving a large number of defendants, victims
and witnesses and requiring a great number of investigative and
judicial steps to be taken. Furthermore, the Government drew the
Court's attention to the prevailing grounds on which the applicant's
detention had been extended, in particular, the absence of a
registered residence in St Petersburg and the fact that he had once
absconded and had been placed on the wanted persons' list. The
placement on the list was warranted by the prosecution authorities'
assumption that the applicant had gone into hiding, as he could not
be found at his place of residence and it was impossible to establish
his whereabouts.
- The applicant replied that the domestic courts had not
provided any evidence showing that he had been genuinely liable to
reoffend, abscond or pervert the course of justice. The only reason
for his continued detention was the gravity of the charges against
him. The applicant further pointed out that he had not known of any
criminal charges brought against him in 1995. In fact, he only
learned about the 1995 warrant for his arrest when he was arrested in
1999. At the same time, in 1994 he and his family openly moved from
Omsk to St. Petersburg. Furthermore, the criminal proceedings
instituted in 1995 against him were discontinued in 2000 on
“rehabilitating grounds”.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) General principles
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty.
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest that might justify, with due
regard to the principle of the presumption of innocence, a departure
from the rule of respect for individual liberty and set them out in
their decisions dismissing the applications for release. It is
essentially on the basis of the reasons given in these decisions and
of the facts mentioned by the applicant in his appeals that the Court
is called upon to decide whether or not there has been a violation of
Article 5 § 3 of the Convention (see Labita v.
Italy [GC], no. 26772/95, § 152, ECHR 2000 IV).
- The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides
for a presumption in respect of factors relevant to the grounds for
continued detention, the existence of concrete facts outweighing the
rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96,
§ 84 in fine, 26 July 2001).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita, cited above, § 153).
(b) Application of the general principles
to the present case
- The Court finds that the period to be examined
commenced on 4 October 1999, when the applicant was arrested,
and ended on 21 July 2003, the day of his conviction by the St
Petersburg City Court on the charges of aggravated robbery and
fraud. It is not disputed by the parties that the applicant's
detention was initially warranted by a reasonable suspicion of his
involvement in the commission of a large-scale fraud. The Court
reiterates that the persistence of reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention. The domestic
authorities cited the gravity of the charges and the need to prevent
the applicant from absconding and obstructing as the grounds for his
placement in custody. At that stage of the proceedings those reasons
justified keeping the applicant in custody (see Khudoyorov v.
Russia, no. 6847/02, § 176, ECHR 2005 X (extracts)).
However after a certain lapse of time it no longer suffices. In such
cases, the Court must establish whether the other grounds given by
the judicial authorities continued to justify the deprivation of
liberty. Where such grounds were “relevant” and
“sufficient”, the Court must also ascertain whether the
competent national authorities displayed “special diligence”
in the conduct of the proceedings (see Labita, cited above,
§§ 152 and 153).
- The
Court notes that the authorities extended the applicant's detention
on a number of occasions. In their decisions they consistently relied
on the gravity of the charges as the main factor and on the
applicant's potential to abscond or pervert the course of justice.
- As
regards the authorities' reliance on the gravity of the charges as
the decisive element, the Court has repeatedly held that the gravity
of the charges cannot by itself serve to justify long periods of
detention (see Panchenko v. Russia, no. 45100/98, § 102,
8 February 2005; Goral v. Poland, no. 38654/97, §
68, 30 October 2003; and Ilijkov, cited above, § 81).
This is particularly true in the Russian legal system, where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – is determined by the prosecution
without judicial review of whether the evidence obtained supports a
reasonable suspicion that the applicant has committed the alleged
offence (see Khudoyorov, cited above, § 180).
- The
other grounds for the applicant's continued detention were the
authorities' findings that the applicant might abscond, pervert the
course of justice and reoffend. The Court reiterates that it is
incumbent on the domestic authorities to establish the existence of
concrete facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina v. Russia,
no. 54071/00, § 67, 7 April 2005). It remains to be
ascertained whether the domestic authorities established and
convincingly demonstrated the existence of concrete facts in support
of their conclusions.
- The
Court notes that the domestic authorities gauged the applicant's
potential to abscond by reference to the fact that he had been
charged with serious criminal offences, and thus faced a severe
sentence. In this connection the Court reiterates that, although the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the need to
continue the deprivation of liberty cannot be assessed from a purely
abstract point of view. It must be examined with reference to a
number of other relevant factors which may either confirm the
existence of a danger of absconding and reoffending or make it appear
so slight that it cannot justify detention pending trial (see
Letellier v. France, 26 June 1991, § 43, Series A no.
207, and Panchenko, cited above, § 106).
- In the present case, in a number of the detention
decisions the domestic authorities cited the lack of a registered
place of residence as the ground for the applicant's continued
detention. The applicant maintained that he had a permanent place of
residence in St Petersburg. However, the Court does not need to
determine the applicant's residence situation, as the mere lack of a
fixed abode does not give rise to a danger of absconding or
reoffending (see Pshevecherskiy v. Russia,
no. 28957/02, § 68, 24 May 2007).
- Another
argument employed by the domestic authorities concerned the
applicant's placement on the wanted persons' list in 1995. The Court
accepts that that factor was relevant in assessing the risk of his
absconding. Such a risk, if convincingly established, may lead the
judicial authorities to place and leave a suspect in detention in
order to prevent any attempts to escape. It is however necessary,
among other conditions, that the danger be a plausible one and the
measure appropriate, in the light of the circumstances of the case
and in particular the past history and the personality of the person
concerned (see, mutatis mutandis, Sergey
Medvedev v. Russia, no. 3194/08, §
52, 30 July 2009). In the light of this principle the Court is
particularly mindful of the applicant's arguments, which were not
disputed by the Government, that in 1994 he had openly moved his
family from Omsk to St Petersburg and that it was not until 1999 that
he had learned about the criminal charges brought against him in 1995
(see paragraph 76 above). The Government also did not dispute that
those charges had been dropped in 2000 on “rehabilitation
grounds”. In this respect the Court does not lose sight of the
fact that the reference to the applicant's placement on the list only
appeared in the prosecution decisions extending the applicant's
detention before October 2000. The domestic courts which took over
the task of authorising the applicant's detention after October 2000
never mentioned his alleged attempt to abscond from criminal
prosecution in 1995. The Court is therefore not convinced that in the
circumstances, when the applicant was not aware of the criminal
charges against him, the mere failure of the investigating
authorities to find him at the place of his former residence in Omsk
leading to his placement on the list of wanted persons justified the
conclusion that he was liable to abscond, particularly so after the
charges had been dropped on rehabilitation grounds in 2000.
- The
Court further observes that the domestic authorities did not cite any
other concrete facts warranting the applicant's detention. They did
not indicate any circumstance to suggest that, if released, the
applicant would abscond, reoffend or otherwise upset the course of
the trial. The domestic courts merely repeated the same conclusion
concerning possible collusion, without citing any reason why,
notwithstanding the arguments put forward by the applicant in support
of his requests for release, they considered the risk of interference
with witnesses and evidence to exist and be decisive. The Court is
therefore not convinced that the domestic authorities' findings that
the applicant was likely to pervert the course of justice, reoffend
or abscond had sufficient basis in fact.
- The
Court further emphasises that when deciding whether a person should
be released or detained, the authorities have an obligation under
Article 5 § 3 to consider alternative measures to
ensure his or her appearance at the trial (see Sulaoja v. Estonia,
no. 55939/00, § 64, 15 February 2005, and Jabłoński
v. Poland, no. 33492/96, § 83, 21 December 2000).
During the entire period under consideration the authorities did not
consider the possibility of ensuring the applicant's attendance by
the use of other “preventive measures” – such as a
written undertaking or bail – which are expressly provided for
by Russian law to secure the proper conduct of criminal proceedings,
or, at the very minimum, seek to explain in their decisions why such
alternatives would not have ensured that the trial would follow its
proper course.
- In
sum, the Court finds that the domestic authorities' decisions were
not based on an analysis of all the pertinent facts. They paid no
regard to the arguments in favour of the applicant's release pending
trial. It is also of particular concern to the Court that the Russian
authorities persistently used a stereotyped summary formula,
simultaneously extending the detention of the applicant and his
co-defendants. In the Court's view, this approach is incompatible in
itself with the guarantees enshrined in Article 5 § 3 of the
Convention in so far as it permits the continued detention of a group
of persons without a case-by-case assessment of the grounds for
detention or of compliance with the “reasonable time”
requirement in respect of each individual member of the group (see
Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006).
- Having
regard to the above, the Court considers that by failing to address
concrete relevant facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the
charges, the authorities extended the applicant's detention on
grounds which cannot be regarded as “sufficient”. They
thus failed to justify the applicant's continued detention for almost
four years. It is hence not necessary to examine whether the
proceedings against the applicant were conducted with due diligence
during that period, as such a lengthy period cannot in the
circumstances be regarded as “reasonable” within the
meaning of Article 5 § 3 of the Convention (see Mishketkul
and Others v. Russia, no. 36911/02, § 59, 24 May 2007,
with further references).
- The
Court accordingly finds a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings was
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Submissions by the parties
- The
Government considered that the complaint of excessive length of
proceedings was inadmissible under Article 35 § 3 of the
Convention. They argued that the delays had been caused by objective
reasons: the complexity of the case, the victims', witnesses' and
lawyers' failure to attend hearings, the defendants' and counsel's
illnesses, the judge's enormous workload and his participation in
other unrelated proceedings.
- The
applicant contested the Government's submissions.
B. The Court's assessment
1. Admissibility
- The
Court observes that the period to be taken into consideration began
on 4 October 1999, when the applicant was arrested. The period in
question ended on 15 January 2004 when the Supreme Court of the
Russian Federation issued the final judgment. It thus lasted
approximately four years and three months before the investigating
authorities and the courts at two levels of jurisdiction.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court accepts that the proceedings at issue were complex. However,
the Court cannot accept that the complexity of the case, taken on its
own, was such as to justify the overall length of the proceedings.
The Court further reiterates that the fact that the applicant was
held in custody required particular diligence on the part of the
courts dealing with the case to administer justice expeditiously (see
Panchenko v. Russia,
no. 45100/98, § 133, 8 February 2005, and
Kalashnikov v. Russia,
no. 47095/99, § 132, ECHR 2002 VI).
- As to the applicant's conduct, the Government argued
that the applicant had to bear the responsibility for an adjournment
of one hearing, which was due to his illness. In this connection, the
Court notes that according to a summary table of court hearings
presented by the Government that adjournment resulted in a one-week
stay of the proceedings. Having regard to the overall length of the
proceedings, the Court therefore considers the delay caused by the
applicant to be negligible.
- As
regards the conduct of the authorities, the Court is aware of
substantial periods of inactivity for which the Government have not
submitted any satisfactory explanation and which are attributable to
the domestic authorities. The Court is mindful of the fact the case
was pending for more than two years and ten months before the St
Petersburg City Court. In particular, it took the investigating
authorities less than a year to prepare the case for examination by
the trial court (see paragraph 7 above). However, after the St
Petersburg City Court had received the case file on 7 September
2000, it was not until 24 October 2001 that the first trial
hearing was to be held (see paragraph 8 above). The following two
hearings were rescheduled due to the judge's participation in other
unrelated proceedings, causing an additional delay of almost three
months (see paragraph 9 above). An additional aggregated delay of
more than five months was caused by the lack of available courtrooms
and the judge's involvement in other proceedings (see paragraphs 9
and 10 above). The Court reiterates the Government's argument
pertaining to the judge's heavy workload. However, Article
6 § 1 of the Convention imposes on Contracting States the duty
to organise their judicial system in such a way that their courts can
meet the obligation to decide cases within a reasonable time (see,
among other authorities, Löffler v. Austria (No. 2),
no. 72159/01, § 57, 4 March 2004). In
addition, the Court considers it particularly striking that six
hearings were adjourned due to the authorities' failure to
transport the defendants from the detention facilities to the
court-house (see paragraphs 20 and 22 above).
- The
Court furthermore notes that the conduct of the victims and witnesses
was one of the reasons for the prolongation of the proceedings. The
Court reiterates that the delay occasioned by their failure to attend
at least seven hearings and the City Court's failure to discipline
them is attributable to the State (see Kuśmierek v. Poland,
no. 10675/02, § 65, 21 September 2004, and Sidorenko v.
Russia, no. 4459/03, § 34, 8 March 2007). Furthermore,
the Court notes that a number of adjournments in the proceedings
occurred owing to the lawyer's illness. The Court is mindful that it
was not until two weeks before the conviction that the City Court
replaced the counsel. The resulting delay could have been avoided had
the City Court taken a more active approach and dismissed the counsel
earlier. Finally, the Court does not lose sight of the fact that the
proceedings were pending for almost six months before the Supreme
Court of the Russian Federation. The Court finds it striking that
during that period the Supreme Court only scheduled and held one
hearing, on 15 January 2004, the same day as the judgment was issued.
- Having
examined all the material before it and taking into account the
overall length of the proceedings, what was at stake for the
applicant and the fact that the proceedings were mostly pending
before the trial court without apparent progress, the Court considers
that in the instant case the length of the criminal proceedings was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a violation of Article 6 §
1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained of ill-treatment in a detention facility,
about the conditions of his transport to and from the court-house,
various procedural defects which had allegedly been committed by the
investigating authorities and domestic courts in the course of the
criminal proceedings against him, and interference with his
correspondence with the relatives.
- Having
regard to all the material in its possession, the Court finds that
the evidence discloses no 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 51,500 euros (EUR) in respect of pecuniary damage,
representing the cost of property allegedly confiscated in the course
of the criminal proceedings. In addition, he claimed EUR 100,000 in
compensation for non-pecuniary damage.
- The
Government submitted that the applicant's claim in respect of
pecuniary damage was not supported by any evidence. They further
stressed that the claim for compensation for non-pecuniary damage was
also manifestly ill-founded and should not be granted.
- The Court observes that there
is no causal link between the violations found and the pecuniary
damage claimed (see Nakhmanovich v.
Russia, no. 55669/00, § 102,
2 March 2006). Furthermore, the applicant did not submit documents
confirming expenses which he allegedly accrued. Consequently the
Court finds no reason to award the applicant any sum under this head.
- As
to non-pecuniary damage, 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 because of the
appalling conditions of his detention for more than four years, the
excessive length of his detention and the criminal proceedings
against him. 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, it awards the applicant 20,000 euros (EUR) in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 200 for the costs and expenses incurred
before the Court.
- The
Government noted that the applicant's claim was unsubstantiated.
- The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation or
violations found, and are reasonable as to quantum, are recoverable
under Article 41 of the Convention (see, for example, Sahin
v. Germany [GC],
no. 30943/96, §
105, ECHR 2003-VIII). The Court observes that the applicant did not
provide receipts or vouchers to substantiate his expenses. The Court
is therefore unable to determine whether the expenses claimed by the
applicant were in fact incurred in the amount he claimed and it
therefore makes no award 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 detention facilities nos. IZ-47/1 and
IZ-47/4 in St Petersburg, the excessive length of his detention on
remand and of the criminal proceedings against him 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 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of 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 20,000
(twenty 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 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
