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FIRST
SECTION
CASE OF KONDRATISHKO AND OTHERS v. RUSSIA
(Application
no. 3937/03)
JUDGMENT
STRASBOURG
19 July
2011
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 Kondratishko and
Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3937/03) 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 five Russian nationals, Mr Aleksandr Ivanovich
Kondratishko, Mr Aleksandr Vasilyevich Burdeyev, Mr Dmitriy
Nikolayevich Tsygankov, Mr Sergey Vasilyevich Kokhan and Mr Sergey
Ivanovich Kondratishko (“the applicants”), on 18 December
2002.
- The applicants, who had been granted legal aid, were
represented by Mr P. Finogenov, a lawyer practising in Moscow. The
Russian Government (“the Government”) were initially
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative Mr G. Matyushkin.
- The
applicants complained, inter alia, that the length of the
criminal proceedings against them had been excessive, the first
applicant further complained about the conditions of his pre-trial
detention, and the third applicant alleged that he had been subjected
to beatings while in police custody.
- On
20 May 2008 the President of the First
Section decided to give notice of the above complaints to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (former Article
29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1973, 1967, 1973, 1974 and 1971 respectively
and lived until their arrest and subsequent conviction in the town of
Bryansk, Russian Federation, except for the fourth applicant, who
lived in the Bryansk Region, Russian Federation.
A. The applicants’ arrest and trial
- Between
March and November 1999 (on 3 March, 4
March, 11 March, 6 March and 15
November 1999 respectively) the applicants were arrested. They
were detained in custody and charged with robbery.
- In
February and March 2000 the applicants were charged with further
crimes which included, inter alia, aggravated theft,
aggravated robbery, extortion, theft and illegal possession of
firearms.
- In May 2000 the criminal investigation was completed,
and on 19 May 2000 the case was submitted to the Bryansk
Regional Court for trial.
- On
8 July 2000 the Bryansk Regional Court remitted the case for further
investigation, considering that it was necessary to rectify the
indictment.
- Following further investigation and the amendment of
the charges against the applicants, the case was resubmitted to the
Bryansk Regional Court on 18 July 2000.
- On
27 July 2000 the Bryansk Regional Court set the date for the start of
the trial, which was due to begin on 8 August 2000.
- Between
8 August and 22 November 2000 twenty-one hearings were held by the
Bryansk Regional Court.
- On 22 November 2000, following a request by the
alleged victims, the case was once again remitted for further
investigation.
- Between
17 January and 30 March 2001 the case was
with the Bryansk Regional Prosecutor’s Office.
- On 30 March 2001 the case was resubmitted to the
Bryansk Regional Court for examination on the merits.
- Between
30 March and 9 August 2001 the Bryansk Regional Court held thirty-one
hearings.
- On
9 August 2001 the Bryansk Regional Court convicted the applicants,
along with six other co-defendants, of robbery, unlawful deprivation
of liberty, banditry, possession of firearms and theft. It sentenced
them to twenty-three years, twenty-two years, eighteen years, six and
a half years and ten years’ imprisonment respectively. Although
the trial was public, the applicants’ relatives were not
allowed to attend it, except for the opening of the trial and the
delivery of the court’s judgment.
- The
trial record was finalised in October 2001. The applicants submitted
certain objections concerning the trial record, but they were
dismissed.
- All
the applicants except for the fifth applicant appealed against their
conviction.
- On
8 January 2002 the criminal case was sent to the Supreme Court of
Russia for examination on appeal.
- On
11 July 2002 the Supreme Court of Russia upheld the applicants’
convictions with minor amendments. The terms of the applicants’
sentences remained unchanged. The appeal decision did not refer to
the fifth applicant.
B. The third applicant’s alleged ill-treatment
and the investigation thereof
1. Alleged ill-treatment
- On
11 March 1999, the day of his arrest, the third applicant was at work
at fire station no. 23 in Zhiryatino in the
Bryansk Region. At about 9 a.m. unidentified persons wearing
plain clothes handcuffed the third applicant and took him to the
Bezhitskiy District police station in Bryansk. On the way to the
police station the applicant was allegedly beaten up and threatened,
in order to make him confess to a number of grave offences.
- At
the police station the applicant was taken to room no.
37, where the beatings allegedly continued.
- Late
at night on 12 March 1999 the applicant was taken to Bryansk regional
remand prison IZ-32/1. However, the officer on duty refused to admit
the applicant to the facility. The officer agreed to admit the
applicant only following the latter’s examination by the local
trauma unit and upon receipt of a certificate attesting to the fact
that the applicant’s injuries were not life-threatening.
- The applicant was taken to the local trauma unit. On
the way to the trauma unit the applicant was allegedly threatened
that he would be subjected to even worse ill-treatment, if not
killed, unless he told the doctors that he had been injured by
falling down a fire escape while at work. Having perceived the
above-mentioned threats as real, in the light of his earlier abuse,
the applicant told the doctors what the police officers had
instructed him to say. The record of the applicant’s medical
examination of 13 March 1999 by the trauma
unit was not made available to the Court.
- It
is unclear where the applicant was held between 13
March and 19 March 1999. It is clear, however, that on 19
March 1999 the police officers brought him again to the Bryansk
regional remand prison IZ-32/1. The record of the applicant’s
medical examination, which was carried out upon his admission, reads,
in particular, as follows:
“... The [applicant’s] general condition is
satisfactory. On the back surface of his shoulder [there is] a
yellow-brown bruise measuring 4 x 4 cm. On his left thigh [there is]
a pale yellow bruise measuring 3 x 3 cm. [According to the applicant]
he was beaten up on 11 March 1999 at the Bezhitskiy District
police station. ...”
2. Investigation of the events by the prosecution
authorities
- As emerges from the documents furnished by the
Government, between 1999 and 2001 the applicant persistently
complained to the prosecution authorities about his beatings at the
Bezhitskiy District police station.
- The Government were unable to provide copies of the
decisions taken in response to the applicant’s complaints as
all the documents pertaining to the respective inquiries were
destroyed on 28 January 2008, following the
expiry of the time-limit for their retention. The Government,
however, relied on the decisions of 19 January
and 28 February 2001 with the following
conclusions.
- On 19 January 2001 the
Bezhitskiy District Prosecutor’s Office of Bryansk refused to
institute criminal proceedings against the police officers in the
absence of corpus delicti in their actions.
- Following
a further inquiry, on 28 February 2001 the Bryansk Regional
Prosecutor’s Office terminated the criminal prosecution against
the police officers in the absence of corpus delicti.
3. Investigation of the events by the court
- In the course of the criminal proceedings against the
applicants which ended with their conviction on 9 August 2001, the
third applicant also complained that he had been ill-treated during
police custody and submitted that his confession had been made under
duress.
- According to the third applicant, at some point in the
proceedings the court heard his co-workers, Mr Zh., the head of the
fire station, and Mr L., commander of the fire guard, who submitted
that no exercise had been performed at the fire station on 11
March 1999, so the applicant could not have fallen down a fire
escape. They further confirmed having seen no traces of injuries on
the applicant when he was changing into his uniform before starting
his work at 8 a.m. that day. The testimony of the above persons does
not appear in the text of the judgment by which the applicant was
convicted. The Government did not contest that the above persons made
the statements in question before the court.
- The court held as follows:
“... Analysing [the applicant’s] statements
about the alleged use on him of unlawful methods of interrogation
(ill-treatment by [police officer] M.) and statements by [witness P.]
questioned at the court hearing, the court notes a manifest
discrepancy as to how and under which circumstances [the applicant
and witness P.] met in autumn 2000 in SIZO (remand prison), as to
what they discussed ... and what particular form of ill-treatment was
applied to the [applicant]; [as well as] a discrepancy between [the
applicant’s] own statements about the same circumstances made
at this court hearing and at the court hearing of 26 September
to 22 November 2000.
At the court [witness P.] submitted that he had known
[the applicant] only by sight, [the applicant’s] last name was
conveyed to him by the investigator who questioned him in the
[correctional] facility.
It follows from the statements of [witness P.] read out
in accordance with Article 286 of the RSFSR Code of Criminal
Procedure, that he knew [the applicant] well before the [latter’s]
arrest, since they lived close to each other, although they have
never been friends.
[The applicant] submitted at the court hearing that he
was never acquainted with [witness P.], and that he knew [the latter]
only by sight.
At the same time it has been established at the court
hearing that in SIZO [witness P.] met and talked to S. [one of the
applicant’s co-defendants], which the latter confirmed. On this
occasion, S. submitted that it was [witness P.] who told him about
[the applicant’s] ill-treatment by the police officers, and
that he told [the applicant] about [witness P.] when they were
brought to court in autumn 2000, after which a request was made to
summon [witness P.] and question him as an additional witness.
Taking into account the inconsistency of the statements
made by [witness P.] and their manifest contradiction with [the
applicant’s] statements, the court considers [these] statements
as to [witness P.] having seen the police officer beating [the
applicant] [to be] unreliable.
According to [the certificate issued by the local trauma
unit (карточка
травматика)],
[the certificate of the medical department of the remand prison
(справка
МЧС СИЗО)]
and the report of the forensic medical expert, bodily injuries in the
form of bruises were found on [the applicant]. At the same time, it
is impossible to establish the exact features of the object used to
cause the injuries, [as well as] the time that the injuries mentioned
in the [trauma unit certificate] of 13 March 1999 were
inflicted. The time of the infliction of the injuries recorded on
19 March 1999 at the [medical department of the remand prison]
corresponds to 1-1.5 weeks prior to [the applicant’s]
examination at [the remand prison] (namely, 9 to 12 March 1999).
[Police officer M.] submitted that he had not been
involved in [the investigation] of the crimes with which [the
applicant] and [other defendants] had been charged, as at the
material time he had been involved in investigating crimes committed
by juvenile offenders.
These statements by [police officer M.] were
corroborated by the head of the Bezhitskiy District police station.
[The applicant’s] statements [to the effect] that
he had had a conflict with [police officer M.] prior to his arrest,
during which [police officer M.] allegedly swore to get even with
[the applicant] and the reference to submissions by [witness D.],
have been checked during the pre-trial investigation and have not
been confirmed.
...
[Investigator P.] denied using physical force on [the
applicant] or other defendants, as well as making any threats to use
physical force. The defendants were in due time informed of their
procedural rights. The records of the interrogations were drawn up
verbatim ...
The verification of the allegations of [the applicant]
that he had been beaten by [police officer M.] and other police
officers and the allegations of defendants S., B., [the applicant],
Ald., Abr., K., G., S. and V. regarding unlawful actions of police
officers aimed at obtaining their confessions allows the court to
acknowledge that the conclusions [contained in the refusal to
institute criminal proceedings against the police officers] are
well-founded ...”
- The
third applicant challenged the above conclusions of the trial court
in his appeal against conviction.
- In
its judgment of 11 July 2002 the Supreme Court held as follows:
“The alleged use on the convicts of unpermitted
methods in the course of the pre-trial investigation ...has been
checked by the court and has been validly declared to be unfounded as
contradicting the factual circumstances and the evidence in this
case, a conclusion with which the [appeal court] agrees”.
C. The first applicant’s conditions of detention
- From
15 March 1999 to 24 November 2002 the first applicant was held in
Bryansk regional remand prison IZ-32/1 (учреждение
ИЗ-32/1 по
Брянской
области)
in cells nos. 24, 72, 74, 76, 77, 92, 109, and 111.
1. The Government’s account
- As
regards the cells’ measurements, the Government submitted as
follows:
(a) cell
no. 24 measures 20.3 square metres;
(b) cell
no. 72 measures 48.5 square metres;
(c) cell
no. 74 measures 48.1 square metres;
(d) cells
no. 76 and 77 measure 46.1 square metres; and
(e) cells
no. 92, 109 and 111 measure 7 square metres.
- The Government were unable to indicate the exact
number of inmates detained in the above cells together with the
applicant, owing to the destruction of the relevant prison
documentation for the period in question. They asserted, however,
that in each cell the applicant was afforded no less than four square
metres of personal space, in compliance with the requirements under
domestic law (see paragraph 71 below). In each cell the applicant was
provided with an individual bed and bedding.
- The
windows in the cells, measuring 1.35-1.4 m by 0.9-1.05 m, were not
covered with sheet metal. The white-painted metal screens were
removed in the course of 2003, following the instruction of the
Prisons Directory of the Ministry of Justice of 26 November
2002.
- Cells
nos. 24, 72, 74, 76 and 77 were each lit with two 80-watt light
bulbs, which conformed to the established legal norms. Cells nos. 92,
109 and 111 were lit with one 80-watt light bulb each. At night time
the cells were lit with 60-watt security lights.
- All
cells had natural ventilation and were equipped with extractor fans.
The cells were also equipped with a heating system providing an
adequate temperature in line with sanitary norms. The average
temperature during the summer was maintained at +22-24 ºC, and
during winter at +18 20 ºC.
- The
cells were equipped with lavatory pans separated from the main area
by partitions at least one metre high and a door. Such arrangements
assured the detainees’ privacy when using the lavatory.
- The
applicant could take a fifteen-minute shower once a week.
- He
was given food three times a day in accordance with the established
legal norms. The quality of the food was monitored on a daily basis
by the medical staff of the detention facility.
- The
cells were equipped with dining tables enabling the inmates to eat at
the same time. They were situated at a distance of two to three
metres from the lavatories.
- The
applicant was allowed a daily one-hour outside walk.
- The
authorities ensured regular disinfection and pest control in the
detention facility.
- In support of their observations the Government
provided several certificates issued by the governor of IZ-32/1
remand prison on 14 July and 21 July 2008, certain documents
which attested to the destruction of registration logs, following the
expiry of the five-year time-limit for their retention (dated 30
March 2006), statements by wardens (undated) and an agreement
of 1 January 2002 between the IZ-32/1
remand prison and Bryansk City Pest Control Station on carrying out
disinfection works in the facility.
2. The first applicant’s account
- The cells were extremely overcrowded. There were some
thirty to forty inmates held in each cell, which implied two or three
inmates per four square metres of cell space. The inmates had to take
turns to sleep as the sleeping places were not sufficient for
everyone.
- The
windows in the cells were covered with metal screens, which provided
little or no access to daylight. The screens were removed after the
applicant had left the facility.
- The
artificial light was insufficient. It was impossible to read without
having to strain one’s eyes.
- The
ventilation did not function. As a result, it was always stuffy in
the cells. The cells could only be ventilated when the windows and
the doors were flung open during the summer which was, however, very
rare.
- The
cells were not heated enough to avoid humidity from the very
beginning of autumn until late spring. The walls were dirty, scuffed,
with plaster falling off them. The walls near the lavatory area were
covered with fungi caused by humidity. In cells nos. 76 and 77, where
the applicant spent most of his time the roof was leaking from the
corners. The corners of the cells were covered with mould. The
temperatures were low and the inmates had to sleep with all their
clothes on.
- The
floor in the cells was paved with asphalt and cement, which also
caused constant humidity and filth. It was impossible to properly
wash or sweep the floors.
- The
lavatory pans in cells nos. 24, 92, 109 and 111 were not separated
from the rest of the cell. One had to use the toilet in plain view of
one’s cellmates. In cells nos. 72, 74, 76, and 77 there was a
partition between the lavatory pan and the rest of the cell. The
partition measured approximately one metre in width and one metre in
height. The lavatory pan was elevated from the floor by half a metre.
The guards removed the curtain that the inmates had installed for
privacy. Despite the partition, one used the toilet in plain view of
one’s cellmates.
- The
cells were not equipped with sinks. Taps with cold water were the
same ones used to flush the toilet; as a result, the inmates had to
wash themselves and to take water from the tap above the toilet.
- There
was not sufficient furniture in the cells to store the inmates’
kitchen- and tableware, bread and toiletries.
- In
cells nos. 72, 74, 76, and 77 there was one table and one bench which
could accommodate fourteen to sixteen inmates at a time, whereas in
the other cells twenty to thirty persons had to wait for their turn.
- All
persons detained in the same cell had to take a shower
simultaneously. As there were only fifteen shower heads, one
shower-head was used by two to three inmates at a time.
- The
food was poorly prepared. It was tasteless and monotonous. Fresh
vegetables and fruit were not included in the ration.
- The applicant lodged numerous complaints with the
prison administration about the conditions of his detention. He was
advised of the financial constraints which made it impossible to
improve the conditions of detention.
- On
an unspecified date in August 2000 the applicant lodged a complaint
with the Prosecutor’s Office, which was forwarded to the
Prisons Directorate of the Ministry of Justice of the Russian
Federation for the Bryansk Region (Управление
исполнения
наказаний
(УИН)
Министерства
юстиции
РФ по
Брянской
области).
After his complaint, half of cell no. 72 was whitewashed. An official
from the Prisons Directorate visited the applicant in connection with
his complaint. On an unspecified date in September 2000 the applicant
received a response to his complaint, which he found unsatisfactory.
He lodged a further complaint with the Prosecutor’s Office. The
second complaint was dismissed on the grounds that it contained
arguments which were substantially the same as the ones previously
submitted.
- On
an unspecified date between September and October 2000 the guards
entered cell no. 72 in the middle of the night, woke up the inmates,
tore down the laundry lines and left. The applicant lodged a
complaint against the guards with the Prosecutor’s Office,
which found no misconduct on their part. After that the applicant
lodged no further complaints, believing that it would be futile to do
so.
- On
3 June 2002 the inmates were given soup prepared with rotten fish. On
4 June 2002 the applicant and four other inmates complained about
this incident. The head of catering tried to convince the inmates
that the soup was edible even though it smelled, but refused to taste
it himself. He also refused to replace the soup. The applicant lodged
a complaint with the Prosecutor’s Office, which he later
withdrew as the prison administration allegedly promised to follow up
on his complaint. Ten days later, in the absence of any response, the
applicant lodged another complaint, requesting the administration to
follow up on the incident of 3 June 2002. The applicant was summoned
to meet the administrative officers, who allegedly threatened him and
transferred him to cell no. 92, where he spent one day.
- On
21 June 2002 the applicant lodged a complaint with the Prosecutor’s
Office in relation to the incident of 3 June 2002 and his subsequent
intimidation by the prison officers. Following his complaint, the
applicant was transferred to cell no. 111.
- On
23 June 2002 the applicant was given mashed jelly–like peas. On
1 July 2002 the applicant was served with yellowish water
instead of soup. On 24 June 2002 and 2 July
2002 the applicant complained about the quality of the food.
- On
22 July 2002 the applicant received a reply from the Prosecutor’s
Office, informing him that his allegations with regard to the quality
of the food in prison were unfounded.
- The
applicant lodged subsequent complaints about the conditions of his
detention with various administrative authorities, which all found
that the statutory requirements had been complied with.
- On 20 August 2002 the applicant lodged a complaint
with the Sovetskiy District Court of Bryansk in respect of the
substandard quality of the food in prison and his alleged
intimidation by the prison officers. On 19 September 2002 the
court dismissed the applicant’s complaint. The decision read,
inter alia, as follows:
“... Section 23 of the
Detention of Suspects Act sets the sanitary norm of 4
square metres of personal space
per detainee.
It appears from the explanation provided by the
facility’s representative and the documents pertaining to the
inquiry conducted by the Prosecutor’s Office that it is not
possible to provide the detainees of [Bryansk regional remand prison
IZ-32/1] with the established norm of personal space as the facility
is currently 50% over its designated capacity.
...”
- The
applicant was served with a copy of the decision of 19 September
2002 on 30 October 2002, after the statutory time-limit for
appealing had already expired.
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 the 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. Investigation of criminal offences
- The RSFSR (Russian Soviet Federative Socialist
Republic) Code of Criminal Procedure (in force until 1 July 2002 -
“the CCrP”) established that a criminal investigation
could be initiated by an investigator upon the complaint of an
individual or on the investigative authorities’ own initiative
when there were reasons to believe that a crime had been committed
(Articles 108 and 125). A prosecutor was responsible for general
supervision of the investigation (Articles 210 and 211). He could
order a specific investigative action, transfer the case from one
investigator to another or order an additional investigation. If
there were no grounds to initiate a criminal investigation, the
prosecutor or investigator would issue a reasoned decision to that
effect, which had to be communicated to the interested party. The
decision was amenable to appeal to a higher prosecutor or to a court
of general jurisdiction (Article 113).
- On
29 April 1998 the Constitutional Court of the Russian Federation held
that anyone whose legitimate rights and interests had been affected
by a decision not to institute criminal proceedings should have the
right to appeal against that decision to a court.
C. Time-limits for trial
- The
RSFSR CCrP established that within fourteen days of receipt of the
case file (if the defendant was in custody), the judge was required
either: (1) to fix the trial date; (2) to return the case for
additional investigation; (3) to stay or discontinue the proceedings;
or (4) to refer the case to a court with jurisdiction to hear it
(Article 221).
- The
trial was to begin no later than fourteen days after the judge had
fixed the trial date (Article 239).
- The
duration of the trial was not limited.
- The
appeal court was required to examine an appeal against the judgment
at first instance within ten days of its receipt. In exceptional
circumstances or in complex cases or in proceedings before the
Supreme Court this time-limit could be extended by up to two months
(Article 333). No further extensions were possible.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE FIRST APPLICANT’S CONDITIONS OF DETENTION
- The
first applicant complained that the conditions of his detention in
Bryansk regional remand prison IZ-32/1 from 15 March 1999 to
24 November 2002 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. Admissibility
1. Exhaustion of domestic remedies
- The
Government argued that the first applicant had not exhausted the
domestic remedies available to him in respect of his complaint about
the conditions of his detention in the remand prison. They submitted,
in particular, that the applicant had not appealed against the
decision of the Sovetskiy District Court of Bryansk of 19 September
2002. Besides, he had never pursued any such complaints before the
prosecution authorities.
- The
first applicant contended that he had repeatedly complained about the
abject conditions of his detention to the facility’s
administration, the prosecution authorities and the court, to no
avail. The applicant further maintained that his failure to appeal
against the decision of 19 September 2002
was due to the late communication of the decision in question and the
domestic authorities’ subsequent refusal to count the statutory
time-limit for appeal from the date of the decision’s eventual
communication. Finally, invoking the findings of the Court in the
case of Kalashnikov v. Russia, the applicant stated that, in
any, event, the remedies invoked by the Government had not been
effective.
- The
Court has already on a number of occasions examined the same
objection by the Russian Government and dismissed it. In particular,
the Court held in the relevant cases that the Government had not
demonstrated what redress could have been afforded to the applicant
by a prosecutor, a court or another State agency, bearing in mind
that the problems arising from the applicant’s conditions of
detention were apparently of a structural nature and did not concern
the applicant’s personal situation alone (see Kalashnikov v.
Russia (dec.), no. 47095/99, 18
September 2001; Moiseyev v. Russia (dec.), no.
62936/00, 9 December 2004; and, more
recently, Guliyev v. Russia, no. 24650/02,
§ 34, 19 June
2008).
- In the present case, the Government have failed to
submit evidence as to the existence of any domestic remedy by which
the applicant could have complained about the general conditions of
his detention, in particular with regard to the structural problem of
overcrowding in Russian detention facilities, or demonstrating that
the remedies available to him were effective, that is to say, that
they could have prevented violations from occurring or continuing, or
that they could have afforded the applicant appropriate redress (see,
to the same effect, Babushkin v. Russia, no. 67253/01, §
37, 18 October 2007, and, more
recently, Aleksandr Makarov v. Russia, no.
15217/07, §§ 82-91, 12
March 2009). Accordingly, the Court dismisses the Government’s
objection as to non-exhaustion of domestic remedies.
2. Compliance with the six-month rule
- The
Government further objected to the examination of the conditions of
the first applicant’s detention as a continuous situation. They
argued that, the application being lodged on 18 December 2002,
the Court should only have regard to the period starting from 18 June
2002, claiming that the preceding period fell outside the six-month
time limit set out in Article 35 §
1 of the Convention.
- The
first applicant did not agree with the approach suggested by the
Government.
- The Court has previously established that the
continuous nature of detention in the same detention facility under
similar conditions warranted examination of the detention without
dividing it into separate periods (see Gubkin
v. Russia,
no. 36941/02, § 86,
23 April 2009). In the present case the
applicant was held in the same detention facility uninterruptedly,
and it appears that the conditions of his detention did not
substantially vary from cell to cell. The Court considers, therefore,
that the first applicant’s detention from 15
March 1999 to 24 November 2002
should be examined as a whole and that the Government’s
objection should be dismissed.
3. Conclusion
- Having
regard to its conclusions in paragraphs 82 and 85 above, the Court
considers that the first applicant’s 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.
B. Merits
1. Submissions of the parties
- Relying
on their account of the conditions of the first applicant’s
detention in facility IZ-32/1, the Government submitted that they
fully complied with the requirements of Article 3 of the Convention:
the applicant was afforded sufficient space enabling him to move
freely about his cell, to perform physical exercise and to use the
sanitary and dining facilities.
- The
applicant disagreed and maintained his complaint. He challenged the
Government’s submissions as factually untrue.
2. The Court’s assessment
- The
Court reiterates that to be regarded as degrading or inhuman for the
purposes of Article 3 of the Convention a given form of treatment
must attain a minimum level of severity (see Price v. the United
Kingdom, no. 33394/96, § 24, ECHR 2001 VII). When
assessing conditions of detention, account must be taken of the
cumulative effect of those conditions, as well as the specific
allegations made by the applicant (see Dougoz v. Greece, no.
40907/98, § 46, ECHR 2001 II).
- The
Court notes that the parties disputed most aspects of the conditions
of the first applicant’s detention. However, there is no need
for the Court to establish the veracity of each and every allegation,
as it has sufficient documentary evidence in its possession to
confirm the applicant’s allegations of severe overcrowding in
Bryansk regional remand prison IZ 32/1, which is in itself
sufficient to conclude that Article 3 of the Convention has been
breached.
- The
Court notes the Government’s argument to the effect that in
each cell the applicant was afforded no less than four square metres
of personal space in accordance with the established legal norms (see
paragraph 38 above). It further notes the Government’s excuse
for their failure to provide original prison documentation which
would have enabled the Court to verify the validity of the above
assertion (see paragraph 48 above).
- At
the same time, the Court observes the decision of the Sovetskiy
District Court of Bryansk of 19 September 2002 in response to
one of the first applicant’s complaints, from which it follows
that the domestic court, basing itself on an explanation provided by
the representative of IZ-32/1 at the material time and on the results
of the inquiry conducted by the Prosecutor’s Office, found that
it had not been possible to provide the detainees of the facility in
question with the established norm of personal space in view of the
fact that the facility had been fifty per cent over its designated
capacity (see paragraph 69 above). The Court further notes that
following the applicant’s complaints to the administration of
IZ-32/1, he was informed of the financial difficulties which allowed
no improvement to be made to the above conditions (see paragraph 61
above).
- Regard
being had to the foregoing, the Court is inclined to accept the
applicant’s account, according to which the cells where he had
been held accommodated from thirty to forty cellmates at any given
time, thereby affording each detainee at all times between 1.3 and
two square metres of personal space. Furthermore, when the sleeping,
sanitary and dining arrangements in the cells are taken into account
it appears that the inmates were left with virtually no free space in
which they could move.
- In
this connection, the Court reiterates that in many cases in which
detained applicants have had at their disposal less than three square
metres of personal space, it has found the lack of personal space
afforded to them to be so extreme as to justify in itself a finding
of a violation of Article 3 of the Convention (see, among many other
authorites; Andrey Frolov v. Russia, no. 205/02, §§
50-51, 29 March 2007; Lind v. Russia, no. 25664/05, §§
61-63, 6 December 2007; Lyubimenko v. Russia, no. 6270/06,
§§ 58-59, 19 March 2009; and, more recently, Veliyev
v. Russia, no. 24202/05, §§ 129-130, 24 June
2010).
- Irrespective
of the reasons for overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its prison 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).
- Having
regard to its case-law on the subject, the material submitted by the
parties and the findings above, 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 first applicant, the Court finds
that the fact that for over three years and eight months he was
obliged to live, sleep and use the toilet in the same cell with so
many other inmates 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.
- There has therefore been a violation of Article 3 of
the Convention on account of the conditions of the first applicant’s
detention from 15 March 1999 to 24 November
2002 in Bryansk regional remand prison IZ-32/1, which the Court
considers to be inhuman and degrading treatment within the meaning of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT
OF THE THIRD APPLICANT’S ILL-TREATMENT
- The third applicant complained that on 11 March 1999
the police officers of the Bezhitskiy District police station of
Bryansk had subjected him to treatment incompatible with Article 3 of
the Convention and that the authorities had not carried out an
effective investigation of that incident.
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions of the parties
- The Government argued, first of all, that the third
applicant’s submissions as to the origin of his injuries had
been inconsistent: having alleged on 13 March 1999 at the trauma
unit that he had fallen down a fire escape, he later reported on 19
March 1999 he that he had been beaten up by the police
officers. Besides, his allegations had not been brought to the
attention of the domestic authorities in due time. In any event, they
had been addressed by the Prosecutor’s Office, which on 19
January 2001 had refused to institute criminal proceedings
against the police officers, a decision which the applicant had not
challenged before a court. Subsequently, the applicant had been
afforded an opportunity to make submissions regarding the alleged
beatings and to question those who had allegedly taken part in them.
The police officers who had been questioned had denied having applied
any physical force against the applicant, for which reason on
28 February 2001 the criminal prosecution against them had been
terminated for lack of corpus delicti. The trial court had
also examined the applicant’s allegations and found them to be
unsubstantiated. The Government concluded that the domestic
authorities had undertaken all necessary measures in order to
investigate the circumstances in question. However, it had not been
established that the applicant had been subjected to any treatment
contrary to Article 3 of the Convention.
- The
third applicant argued that the documents submitted by the Government
confirmed his injuries and the fact that as early as March 1999 he
had complained about having been injured by the police officers. The
applicant noted that, although the Government had supplied numerous
documents pertaining to his complaints about the beatings to
prosecution authorities at various levels, they had failed to submit
the investigation file, including the decision of 28
February 2001 on the termination of the criminal proceedings
against the police officers, referring to the destruction of the file
in question owing to the expiry of the time-limit for its retention.
In such circumstances, the Government’s statement to the effect
that the domestic authorities had taken all measures necessary for
the establishment of the truth had been unsubstantiated. The
applicant maintained that the physical and mental suffering to which
he had been subjected by the police officers had by far exceeded the
minimum level of severity proscribed by Article 3 of the Convention
and therefore amounted to a violation of that provision.
2. The Court’s assessment
(a) Alleged ill-treatment of the third
applicant
- The Court reiterates that persons in custody are in a
vulnerable position and that the authorities are under a duty to
protect their physical well-being (see Gladyshev v. Russia,
no. 2807/04, § 51,
30 July 2009; Sarban v. Moldova, no.
3456/05, § 77, 4 October
2005; and Mouisel v. France, no.
67263/01, § 40, ECHR 2002-IX).
In respect of a person deprived of his liberty, any recourse to
physical force which has not been made strictly necessary by his own
conduct diminishes human dignity and is in principle an infringement
of the right set forth in Article 3 of the Convention (see Sheydayev
v. Russia, no. 65859/01, §
59, 7 December 2006; Ribitsch v.
Austria, 4 December 1995,
§ 38, Series A
no. 336; and Krastanov v. Bulgaria,
no. 50222/99, § 53,
30 September 2004).
- The Court further reiterates that to fall under
Article 3 of the Convention ill-treatment must attain a minimum level
of severity. The standard of proof relied upon by the Court is that
“beyond reasonable doubt” (see Avşar v.
Turkey, no. 25657/94, §
282, ECHR 2001-VII). Such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. Where the events in
issue lie wholly or in large part within the exclusive knowledge of
the authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Gladyshev, cited
above, § 52; Oleg Nikitin
v. Russia, no. 36410/02, § 45,
9 October 2008; and Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII).
- Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Klaas v. Germany, 22
September 1993, § 29, Series A
no. 269). Although the Court is not bound by the findings of the
domestic courts, in normal circumstances it requires cogent elements
to lead it to depart from the findings of fact reached by those
courts (see Matko v. Slovenia, no. 43393/98, §
100, 2 November 2006). The Court
must apply a particularly thorough scrutiny where the applicant
raises an arguable complaint of ill-treatment (see Ribitsch,
cited above, § 32, and Avşar,
cited above, § 283).
- Turning
to the facts of the present case, the Court notes that shortly after
the alleged beatings, on 13 March 1999, the third applicant
underwent a medical examination at the local trauma unit (see
paragraph 25 above). The record of the above examination, which was
not made available to the Court, had been considered and relied upon
by the domestic court. The applicant was further examined on 19
March 1999 at the medical department of the remand prison upon
his admission (see paragraph 27 above) and observed as having large
bruises on the back surface of his shoulder and his left thigh. The
results of the forensic medical examination subsequently conducted on
an unspecified date indicated that the applicant’s injuries had
been caused approximately one to one and a half weeks prior to
his medical examination on 19 March 1999
(that is, between 9 and 12 March 1999) (see paragraph 33 above).
- The
Court notes the Government’s argument that the third applicant
had cited a fall from a fire escape as the cause of his injuries when
being examined at the local trauma unit. However, the Court has
doubts as to the credibility of the applicant’s statement. It
is not surprising that the applicant did not disclose the real cause
of his injuries to the doctors of the local trauma unit while still
in the presence of the alleged culprits. The Court cannot rule out
the possibility that the applicant felt intimidated by the persons he
had accused of having ill-treated him (see Nadrosov v.
Russia, no. 9297/02, §
33, 31 July 2008, with further
references). The Court must also have regard to the fact that the
applicant, in his complaints to the prosecution authorities and later
to the domestic courts, was unequivocal in his account that he had
been ill-treated by police officers of the Bezhitskiy District police
station during his arrest and while in custody. Furthermore, as it
appears from the applicant’s submissions, at some point during
the criminal proceedings against him, the domestic court questioned
his co-workers Mr Zh. and Mr L., who
submitted that no exercise had been performed at the fire station on
11 March 1999, so the applicant could not
have fallen down a fire escape, and that no traces of injuries had
been seen by them on the applicant when he was changing into his
uniform before starting his work that day. The Court notes that the
Government did not contest that the above persons were questioned by
the trial court and made these submissions (see paragraph 32 above).
- Bearing
in mind the authorities’ obligation to account for injuries
caused to persons within their control in custody and in the absence
of a convincing and plausible explanation by the Government in the
instant case, the Court finds it established to the standard of proof
required in Convention proceedings that the injuries on the third
applicant’s body were the result of the treatment about which
he complained and for which the Government bore responsibility.
- The
Court notes the third applicant’s allegation that the police
officers beat him up during his arrest and subsequently at the police
station. However, the conclusion that the applicant’s injuries
were caused by the treatment he was subjected to whilst under the
control of the authorities and the fact that the Government have not
furnished any arguments providing a basis to explain or justify the
force used make it unnecessary for the Court to inquire into the
specific circumstances surrounding the use of violence against the
applicant. The Court, nevertheless, considers it necessary to stress
that it has never been argued that the applicant resisted arrest,
attempted to escape or did not comply with the lawful orders of the
police officers. Furthermore, there is no indication that at any
point during his arrest or subsequent detention at the police station
he threatened the police officers, for example by openly carrying a
weapon or by attacking them (see, by contrast, Necdet Bulut v.
Turkey, no. 77092/01, §
25, 20 November 2007, and Berliński
v. Poland, nos. 27715/95 and 30209/96,
§ 62, 20 June
2002). The Court therefore does not discern any necessity which might
have prompted the use of violence against the applicant. It appears
that the use of force was retaliatory in nature and was aimed at
debasing the applicant and driving him into submission. In addition,
the treatment to which the applicant was subjected must have caused
him mental and physical suffering, even though it did not apparently
result in any long-term damage to his health.
- Accordingly, having regard to the nature and the
extent of his injuries, the Court concludes that the State is
responsible under Article 3 on account of the inhuman and degrading
treatment to which the third applicant was subjected on 11 March 1999
by the police and that there has thus been a violation of that
provision.
(b) Alleged inadequacy of the
investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure
to everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there
should be an effective official investigation. An obligation to
investigate “is not an obligation of result, but of means”:
not every investigation should necessarily be successful or come to a
conclusion which coincides with the claimant’s account of
events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those
responsible.
- The investigation of arguable allegations of
ill-treatment must be thorough. That means that the authorities must
always make a serious attempt to find out what happened and should
not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. They must take all
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, a detailed statement
concerning the allegations from the alleged victim, eyewitness
testimony, forensic evidence and, where appropriate, additional
medical certificates apt to provide a full and accurate record of the
injuries and an objective analysis of the medical findings, in
particular as regards the cause of the injuries. Any deficiency in
the investigation which undermines its ability to establish the cause
of injuries or the identity of the persons responsible will risk
falling foul of this standard. The investigation into the alleged
ill-treatment must be prompt. Lastly, there must be a sufficient
element of public scrutiny of the investigation or its results; in
particular, in all cases, the complainant must be afforded effective
access to the investigatory procedure (see, among many authorities,
Lopata v. Russia, no. 72250/01, §§
109-110, 13 July 2010; Maksimov
v. Russia, no. 43233/02, § 83,
18 March 2010; Nadrosov, cited above, §
38; Mikheyev v. Russia, no. 77617/01, §§
107-110, 26 January 2006, and
Assenov and Others v. Bulgaria, 28 October 1998, §
102, Reports of Judgments and Decisions
1998 VIII).
- Turning to the circumstances of the present case, the
Court observes the Government’s argument to the effect that the
third applicant failed to bring his complaint of ill-treatment before
the domestic authorities in good time (see paragraph 100 above). In
this connection the Court notes that, while being admitted on 19
March 1999 to the remand prison, the applicant claimed that
the injuries on his body had been caused by police officers of the
Bezhitskiy District police station on 11 March
1999 (see paragraph 27 above). The Court further notes that, as it
appears from the documents furnished by the Government, between 1999
and 2001 the applicant repeatedly complained that he had been beaten
up by the officers of the Bezhitskiy District police station (see
paragraphs 27 and 31 above). The Court considers, therefore, that the
applicant complied with his obligation to bring the matter before the
domestic authorities at a time when they could reasonably have been
expected to investigate the circumstances in question.
- The
Court further observes that the third applicant’s allegations
were corroborated by medical evidence attesting to a number of
bruises on his body, namely the certificate issued by the local
trauma unit on 13 March 1999 and the record of his examination
at the medical department of the remand prison on 19
March 1999. The applicant’s claim was therefore shown to
be “arguable” and the domestic authorities were placed
under an obligation to carry out “a thorough and effective
investigation capable of leading to the identification and punishment
of those responsible”.
- It
appears from the Government’s submissions that on 19 January
2001 the Bezhitskiy District Prosecutor’s Office of Bryansk
refused to institute criminal proceedings against the police officers
in the absence of corpus delicti in their actions. Following
an additional inquiry, on 28 February 2001 the Bryansk Regional
Prosecutor’s Office, invoking the same grounds, terminated the
criminal prosecution against the police officers. Subsequently, the
domestic courts at two instances, having examined the third
applicant’s allegations of ill-treatment in the course of the
proceedings against him, found them to be unsubstantiated. The issue
is consequently not so much whether there was an investigation as
whether it was conducted diligently, whether the authorities were
determined to identify and prosecute those responsible, and,
accordingly, whether the investigation was effective (see Oleg
Nikitin, cited above, § 39).
- The
Court notes with regret that the copies of the decisions of
19 January and 28 February 2001 were not made available to it
owing to the destruction of the relevant files on 28
January 2008 upon the expiry of the time-limit for their
retention (see paragraph 28 above). The Court finds it peculiar that,
having preserved documents pertaining to the third applicant’s
complaints about the events in question dating back to the same
period and of relatively minor importance for the Court’s
analysis (see paragraph 27 above), the domestic authorities destroyed
the major procedural documents which would have allowed the Court to
assess the thoroughness, promptness and independence of the inquiries
conducted. The Court will therefore make its assessment of the
effectiveness of the investigation into the applicant’s
allegations on the basis of the findings of the domestic courts.
- The
Court observes that, having examined the medical evidence, including
the results of the forensic medical examination which established
that the third applicant’s injuries had been caused at around
the time he alleged, and having questioned the applicant, the police
officers involved in the incident and the witnesses, the domestic
court arrived at the conclusion that the applicant’s
allegations had been unsubstantiated. The Court, however, remains in
doubt as to whether in fact the domestic authorities made any
meaningful attempt to find out what really happened and to bring
those responsible for the ill-treatment to account. Such doubt stems
from the fact that no consideration at all was given to the medical
findings, as well as the statements of the applicant’s
co-workers who had confirmed that he had had no injuries before being
apprehended by the police, and from the fact that no attempt
whatsoever was made to establish the cause of the applicant’s
injuries.
- In
view of the above considerations, the Court considers that the
investigation carried out into the third applicant’s
allegations of ill-treatment was not thorough, adequate or effective
and that it was not capable of leading to the establishment of the
facts and to the identification and punishment of those responsible.
- There has accordingly been a violation of Article 3
of the Convention under its procedural limb.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT
OF THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the criminal proceedings
against them had been incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention, which provides,
in its relevant part, 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. Admissibility
- The
Court reiterates that the period to be taken into consideration in
determining the length of criminal proceedings begins with the day on
which a person is “charged” within the autonomous and
substantive meaning to be given to that term. It ends with the day on
which a charge is finally determined or the proceedings are
discontinued. The “charge”, for the purposes of Article 6
§ 1, may be defined as “the official notification given to
an individual by the competent authority of an allegation that he has
committed a criminal offence”, an alternative “test”
being whether “the situation of the [suspect] has been
substantially affected” (see, most recently, Kovaleva v.
Russia, no. 7782/04,
§ 92, 2
December 2010, with further references).
- The
periods to be taken into consideration in the present case began on
the dates of the applicants’ arrests on 3
March, 4 March, 11
March, 6 March and 15 November
1999 respectively, when they were first affected by the “charges”
against them. The periods in question ended on 11
July 2002; when the Supreme Court of Russia upheld the
applicants’ convictions on appeal, save for the fifth
applicant, who did not appeal against his conviction and in respect
of whom, for that reason, the period in question ended with the
judgment of 9 August 2001.
- It
follows that in so far as the complaint concerns the fifth applicant,
it was introduced outside the six-month time-limit and must be
dismissed pursuant to Article 35 §§
1 and 4 of the Convention.
- It follows, further, that, in so far as the complaint
concerns the first four applicants, the periods to be taken into
consideration lasted approximately three years and four months for
the pre-trial proceedings and the court proceedings at two levels of
jurisdiction. The complaint in this part is therefore not manifestly
ill-founded within the meaning of Article 35
§ 3 (a) of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Submissions of the parties
- The
Government submitted that the criminal case against the applicants
had been rather complex, involving eleven co-accused charged with
twenty instances of criminal activity, forty-two victims and
forty-seven witnesses. The above circumstances had affected the
overall length of the pre-trial investigation. As regards the
proceedings before the court, they had been completed within a
reasonable time-frame. On the whole, the Government submitted that
the length of the proceedings in the present case had not exceeded
the “reasonable time” requirement of Article 6 § 1
of the Convention.
- The
applicants did not agree that the case was of any particular
complexity. They argued, in particular, that the length of the
pre-trial investigation (one year and seven months) had been
unreasonable and resulted from the remittal of the case on two
occasions for additional investigation, the responsibility for which
lay entirely with the domestic authorities. As a result, the
proceedings had been delayed by over six months. The applicants
further submitted that the length of the proceedings before the court
had amounted to one year and nine months. It had taken the trial
court two months to prepare the record of the trial (in contrast to
the three-day time-limit set out in domestic law) and another three
months to submit the case to the Supreme Court for examination on
appeal. Moreover, it had taken the appeal court six months to start
its examination of the case (in contrast to the maximum of two months
set out in domestic law). In view of the foregoing, the applicants
contended that the domestic authorities had failed to process their
case within a reasonable time and had therefore breached the relevant
requirement of Article 6 § 1of the Convention.
2. The Court’s assessment
- The
Court reiterates that the reasonableness of the length of the
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court’s case-law – in particular, the complexity
of the case, the applicant’s conduct and the conduct of the
competent authorities. On the latter point, what is at stake for the
applicant also has to be taken into consideration (see, most
recently, Kovaleva, cited above, § 94,
with further references).
- The
Court accepts that the present case, involving eleven co defendants
and multiple serious charges, was somewhat complex.
- Regarding
the applicants’ conduct, the Court cannot discern any delay in
the proceedings attributable to the applicants.
- Turning
to the conduct of the domestic authorities, the Court observes that
the case was being investigated for approximately sixteen months
(from March 1999 to May 2000, from 8 July
to 18 July 2000 and from 17
January to 30 March 2001). The delay
of approximately six months occurred as a result of the remittal of
the case twice for additional investigation. Subsequently, for nine
months the case was being examined by the trial court (from 18
July to 22 November 2000 and from 30 March
to 9 August 2001). The Court observes that during this time
hearings were scheduled and held at regular intervals, and that no
inactivity on the part of the trial court is detectable. A two-month
delay occurred as a result of the belated drafting of the trial
record and a three-month delay as a result of the belated referral of
the case to the appeal court. Later, the case remained with the
appeal court for a period of six months (from 8
January to 11 July 2002).
- In
the Court’s view, despite a number of delays outlined above for
which the domestic authorities should be held responsible, and having
regard to the aggregate length of the proceedings in this case which
was of a certain complexity, on the whole the domestic authorities
were diligent and handled the case within what can be considered to
be a reasonable time for its examination.
- There
has therefore been no breach of Article 6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF
THE CONVENTION
- Finally,
the applicants submitted a number of additional complaints under
Articles 3, 5 and 6 of the Convention relating to their arrest,
detention and trial.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is 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 manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) 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
applicants claimed 10,000 euros (EUR) each in respect of
non pecuniary damage caused by the excessive length of the
proceedings in their case. The first applicant claimed an additional
EUR 15,000 in respect of non-pecuniary damage resulting from the
inhuman and degrading conditions of his detention and the third
applicant claimed an additional EUR 25,000 in respect of
non-pecuniary damage resulting from his ill treatment while in
police custody.
- The
Government submitted that the claims were excessive and that, in any
event, the finding of a violation would constitute sufficient just
satisfaction.
- The
Court notes that it has found serious violations in respect of the
first and third applicants in the present case: the first applicant
was detained in inhuman and degrading conditions, and the third
applicant was ill-treated while in police custody and the domestic
authorities failed to carry out an effective investigation into the
matter. In these circumstances, the Court considers that the first
and third applicants’ suffering and frustration cannot be
compensated for by the mere finding of a violation. Making its
assessment on an equitable basis, the Court awards the first
applicant EUR 15,000 and the third applicant EUR 18,000 in
respect of non pecuniary damage, plus any tax that may be
chargeable to them on those amounts.
B. Costs and expenses
- The applicants did not claim costs and expenses.
Accordingly, there is no call to make an 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 admissible
(a) the complaint under
Article 3 concerning the conditions of the first
applicant’s detention in Bryansk regional remand prison IZ-32/1
from 15 March 1999 to 24 November 2002;
(b) the
complaint under Article 3 concerning the third applicant’s
ill treatment while in police custody and the failure of the
domestic authorities to carry out an effective investigation;
(c) the
complaint under Article 6 § 1 concerning the length of the
criminal proceedings against the first four applicants;
and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the first
applicant’s detention from 15 March 1999 to 24 November
2002 in Bryansk regional remand prison IZ-32/1;
- Holds that there has been a violation of Article
3 of the Convention on account of the third applicant’s
ill-treatment by the police officers on 11 March 1999 and the
failure of the domestic authorities to carry out an effective
investigation;
- Holds that there has been no violation of
Article 6 of the Convention on account of the length of the criminal
proceedings against the first four applicants;
- Holds
(a) that
the respondent State is to pay the first and third applicants, within
three months from the date on which the judgment becomes final in
accordance with Article 44
§ 2 of the Convention, EUR
15,000 (fifteen thousand euros) and EUR 18,000 (eighteen thousand
euros) respectively, plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
