In the case of Zentsov and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
35297/05) 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 three Russian nationals, Mr Aleksey Sergeyevich Zentsov
(“the first applicant”), Ms Lira Nikolayevna Guskova (“the second applicant”)
and Mr Ivan Fedorovich Drozdov (“the third applicant”), on 14 June 2005.
The applicants were represented by Mr D.
Agranovskiy and Ms E. Liptser, lawyers practising in Elektrostal,
Moscow Region, and Moscow respectively. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicants alleged, in particular, that that
they had been detained in appalling conditions pending criminal proceedings
against them and that their pre-trial detention had been unreasonably long.
On 9 March 2009 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant was born in 1982 and lives in
Novosibirsk. The second applicant was born in 1982 and lives in Kazan. The third applicant was born in 1984 and lives in Roshal, Moscow Region.
A. Background information
The applicants are members of the National
Bolsheviks Party.
On 14 December 2004 a group of about forty
members of the National Bolsheviks Party occupied the waiting area of the
President’s administration building in Moscow and locked themselves in an
office on the ground floor.
They asked for a meeting with the President, the
deputy head of the President’s administration and the President’s economic adviser.
They handed out leaflets through the windows featuring a printed letter to the
President which listed ten ways in which he had allegedly failed to comply with
the Constitution and which called for his resignation.
The intruders stayed in the office for an hour
and a half until the police broke down the locked door and arrested them. They
did not offer any resistance to the authorities.
B. The criminal proceedings against the applicants
On 16 December 2004 the Khamovnicheskiy District
Court of Moscow ordered the applicants’ detention on the ground that they were
suspected of an especially serious criminal offence.
The applicants were charged, on 21 December 2004,
with the attempted violent overthrow of State power (Article 278 of the
Criminal Code) and the intentional destruction and degradation of others’
property in public places (Articles 167 § 2 and 214).
By separate decisions of 8, 9
and 11 February 2005 the Zamoskvoretskiy District Court of Moscow extended the
applicants’ detention until 14 April 2005 on the basis of the gravity of the
charges. The court also found that the second applicant had no registered place
of residence in Moscow or the Moscow region, and therefore there was a
possibility that she might abscond or interfere with the investigation. In
respect of the third applicant the court held that his permanent place of
residence in the Moscow region, ongoing studies at a university in Moscow, previously clean criminal record and good character references were insufficient to
warrant his release, given the gravity of the charges laid against him.
On 16 February 2005 the
applicants’ charge was amended to that of participation in mass disorder, an
offence under Article 212 § 2 of the Criminal Code.
By separate but identically worded decisions of
7 April 2005 the District Court granted the prosecution’s request for an
extension of the applicants’ detention until 14 July 2005, for the following
reasons:
“The court takes into account that the case involves forty defendants
who have just started, together with their counsel, to study the case file which
comprises twelve volumes ... Moreover, the prosecution needs additional
time in order to prepare the bill of indictment ...
Having regard to the fact that [the first and the second
applicants] are not registered with a permanent place of residence in Moscow or
the Moscow region and taking into account the gravity of the charges and the
prosecutor’s arguments that [the applicants], once released, might flee from
justice, the court considers that [the applicants] should remain in custody. ”
On appeal, counsel for the applicants asked for
their release as they had no previous criminal record, had good character references
and a permanent place of residence and were in employment or studying at the university.
He further submitted that the applicants did not require much time to study the
case file. At the appeal hearing before the Moscow City Court the applicants
confirmed that they had finished studying the case file.
On 11 May 2005 the Moscow City Court upheld the
decisions of 7 April 2005, finding that they had been lawful, sufficiently
reasoned and justified.
The investigation was
completed on 7 June 2005 and thirty-nine persons, including the applicants,
were committed for trial.
On 20 June 2005 the Tverskoy District Court of
Moscow scheduled the preliminary hearing for 30 June 2005 and held that all the
defendants should meanwhile remain in custody.
On 30 June 2005 the District Court held a
preliminary hearing. It rejected the defendants’ requests for release, taking
into account their character, young age, frail health, family situation and
stable way of life. However, it found, referring to the gravity of the charges,
that “the grounds on which the preventive measure [had been] previously imposed
still persist[ed]” and that “the case file gave sufficient reasons to believe
that, once released, the defendants would flee or interfere with the trial”. It
therefore ordered that all the defendants should remain in custody pending
trial.
The applicants lodged applications for release.
On 27 July 2005 the District Court rejected these requests, finding that their
detention was lawful and justified.
On 10 August 2005 the applicants filed new
applications for release. On the same day the District Court rejected the
requests. It held:
“The court takes into account the defence’s argument that an individual
approach to each defendant’s situation is essential when deciding on the
preventive measure.
Examining the grounds on which ... the court ordered and
extended the detention of all the defendants without exception ... the court
notes that these grounds still persist today. Therefore, having regard to the
state of health, family situation, age, profession and character of all the
defendants, and to the personal guarantees offered on their behalf by certain
private individuals and included in the case file, the court concludes that, if
released, each of the applicants might abscond or obstruct the course of
justice in some other way...
In the court’s view, in these circumstances, having regard to
the gravity of the charges, there are no grounds for varying or revoking the
preventive measure in respect of any defendant ...”
On 8 December 2005 the District Court found the
applicants and their co-defendants guilty of participation in mass disorder. It
gave each applicant a suspended sentence of three years and released them all
on probation.
C. Conditions of detention
1. The conditions of detention in remand prison
no. IZ-77/2 in Moscow
The first and third applicants were held in remand
prison no. IZ-77/2 in Moscow.
(a) The description provided by the Government
The Government provided the following
description of the conditions of detention in respect of the first and third
applicants.
(i) The cell population in respect of the first
applicant
As regards the number of inmates
sharing a cell with the first applicant, the Government relied on a number
of excerpts from the prison population register in respect of fourteen days and
the certificates prepared by the remand prison administration in April 2009.
(ii) The cell population in respect of the third
applicant
As regards the number of
inmates sharing a cell with the third applicant, the Government relied on
a number of excerpts from the prison population register in respect of four
days and the certificates prepared by the remand prison administration in April
2009.
|
Period of
detention
|
Cell number
|
Cell area
(square metres)
|
Cell
capacity/Number of inmates
|
|
From 16 to
26 December 2004
|
|
8
|
/5
|
|
From 26 to
30 December 2004
|
|
5
|
Not
indicated/3
|
|
From
30 December 2004 to 14 January 2005
|
|
4
|
Not indicated/14
|
|
From 14
January to 3 February 2005
|
a
|
0
|
/5-6
|
|
From 3 to
12 February 2005
|
|
3
|
/5
|
|
From 12 to
25 February 2005
|
a
|
0
|
Not
indicated/3
|
|
From
25 February to 11 March 2005
|
|
3
|
Not
indicated/2
|
|
From 11 to
23 March 2005
|
|
2
|
Not indicated/2
|
|
From 23 to
29 March 2005
|
|
9
|
Not
indicated/13
|
|
From
29 March to 13 May 2005
|
|
2
|
Not
indicated/2
|
|
From
13 May to 26 July 2005
|
|
3
|
Not
indicated/2
|
|
From
26 July to 8 December 2005
|
|
4
|
/2
|
(iii) Other aspects of the conditions of detention in
respect of the first and third applicants
According to the Government, the first and third
applicants were each provided with their own bed and bedding, a mug, a dish and
a spoon.
The lighting in the cells was in compliance with
applicable standards. At night low-voltage bulbs were used to maintain lighting
for surveillance purposes. The cells were serviced by a ventilation system in good
working order. The inmates were allowed exercise for one hour per day in the
prison yard. The cells were regularly disinfected.
(b) The description provided by the first and third
applicants
The first and third applicants contested the
Government’s submissions. According to them, the cells where they were detained
were overcrowded at all times and infested with insects. The toilet had only
been separated by a screen from the living area of the cell and did not offer
any privacy. The applicants had been allowed to take a ten-minute shower once a
week. The food was scarce and no medicine, other than aspirin and other
analgesics, was available. The applicants had been permitted a walk for about
an hour per day. The exercise yard was sheltered and measured 15 square
metres in area. No books or newspapers had been available.
2. The conditions of detention in remand prison
no. IZ-77/6 in Moscow
The second applicant was detained
in remand prison no. IZ-77/6 in Moscow. According to the Government, she was
held in cells nos. 202 and 204 which measured 131.1 and 131.3 square
metres respectively. Cell no. 202 was equipped with forty-four beds and
housed thirty-one inmates. Cell no. 204 was equipped with forty-two beds
and housed from twenty-nine to thirty-two inmates. The second applicant had
been provided with bed sheets, soap and personal hygiene products. The
ventilation system in the cells had been in good working order. Additional
access to fresh air was possible through the windows. The cells were
disinfected once a month.
According to the second applicant, the cells
were infested with cockroaches and crickets. The toilet was separated from the
living area of the cell by a screen - one metre in height - which did not offer
any privacy. She had been allowed to take a ten-minute shower once a week. The
food was of poor quality. No books were available. The inmates received one
periodical a month behind publication.
II. RELEVANT DOMESTIC LAW
. For
a summary of the relevant domestic
provisions governing conditions and length of
pre-trial detention, see the cases of Dolgova v. Russia, no.
11886/05, §§ 26-31, 2 March 2006, and Lind v. Russia, no. 25664/05,
§§ 47-52, 6 December 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained that they had been
detained in appalling conditions in remand prisons nos. IZ-77/2 and
IZ-77/6 in Moscow in contravention 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.”
The Government contested that argument. Relying
on the certificates prepared by the administration of the remand prisons and
statements made by remand prison officers dated April 2009, they asserted that
the conditions of the applicants’ detention had been in compliance with the
standards required by Article 3. As regards the applicants’ allegations of
overcrowding, the Government submitted excerpts from the prison population
registers showing the number of inmates per cell recorded on several days at
random.
The applicants maintained their complaint.
A. Admissibility
As regards the second applicant, the Court notes
that she did not describe the conditions of her detention in much detail. Nor
did she challenge the description of the conditions submitted by the Government
who asserted that the personal space accorded to her exceeded four square
metres (see paragraph 30 above). In such circumstances, the Court considers, on
the basis of the information provided by the parties, that the conditions of
the second applicant’s detention did not reach the threshold of severity to
fall within the ambit of Article 3 of the Convention. It follows that this
part of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
As regards the complaint in respect of the first
and third applicants, the Court finds that it 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.
B. Merits
The general principles concerning the conditions
of detention are well established in the Court’s case-law and have been
summarised as follows (see Ananyev and Others v. Russia, nos. 42525/07
and 60800/08, 10 January 2012):
“139. The Court reiterates that Article 3 of the
Convention enshrines one of the most fundamental values of a democratic
society. It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim’s behaviour
(see, for example, Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
Ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is relative; it depends
on all the circumstances of the case, such as the duration of the treatment,
its physical and mental effects and, in some cases, the sex, age and state of
health of the victim (see, among other authorities, Ireland
v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).
140. Ill-treatment that attains such a minimum level
of severity usually involves actual bodily injury or intense physical or mental
suffering. However, even in the absence of these, where treatment humiliates or
debases an individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority capable of
breaking an individual’s moral and physical resistance, it may be characterised
as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
141. In the context of deprivation of liberty the
Court has consistently stressed that, to fall under Article 3, the suffering
and humiliation involved must in any event go beyond that inevitable element of
suffering and humiliation connected with the detention. The State must
ensure that a person is detained in conditions which are compatible with
respect for human dignity, that the manner and method of the execution of the
measure do not subject him to distress or hardship of an intensity exceeding
the unavoidable level of suffering inherent in detention and that, given the
practical demands of imprisonment, his health and well-being are adequately secured
(see Kudła,
cited above, §§ 92-94, and Popov
v. Russia, no. 26853/04, § 208, 13 July 2006).
142. When assessing conditions of detention, account
has to be taken of the cumulative effects of these conditions, as well as of
specific allegations made by the applicant (see Dougoz v. Greece, no.
40907/98, § 46, ECHR 2001-II). The length of the period during which
a person is detained in the particular conditions also has to be considered
(see, among other authorities, Alver
v. Estonia, no. 64812/01, 8 November 2005).”
Turning to the facts of the present case, the
Court notes that the parties disagreed on most aspects of the conditions of
detention of the first and third applicants. However, where conditions of
detention are in dispute, there is no need for the Court to establish the
veracity of each and every disputed or contentious point. It can find a
violation of Article 3 on the basis of any serious allegations which the
respondent Government do not dispute (see, mutatis
mutandis, Grigoryevskikh
v. Russia, no. 22/03, § 55, 9 April 2009).
Firstly, the Court notes that it has already
found a violation of Article 3 as regards a complaint of overcrowding in
the same remand prison - IZ-77/2 - during the same period (see Lind,
cited above, §§ 42 and 58-63). Overcrowding in Russian remand prisons,
generally, has been a matter of concern to the Court. In a great number of
cases, the Court has found a violation of the applicants’ rights on account of the
lack of sufficient personal space accorded them during their pre-trial
detention (see Lind, cited above, § 60).
Furthermore, the Court observes that Convention
proceedings do not in all cases lend themselves to a rigorous application of
the principle affirmanti
incumbit probatio (“he who alleges must prove”) because in certain
instances, such as in the present case, the respondent Government alone have
access to information capable of corroborating or refuting allegations. Failure
on the 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).
The Court takes cognisance of the data submitted
by the Government to challenge the applicants’ contention. However, the Court
notes that the information submitted by the Government is incomplete. The
Government submitted excerpts from the remand prison population register in
respect of fourteen and four days only as regards the first and third
applicants respectively. No explanation as to how the samples had been chosen
was provided. While the Court accepts that on some days the number of inmates
in the aforementioned cells where the applicants were detained was indeed below
the capacity they were designed for and that the cells were not overcrowded, it
cannot accept the Government’s assertion that there was no overcrowding in
respect of the remaining period of almost twelve months which the applicants
spent in detention. Furthermore, the Court cannot but notice that even the excerpts
from the register show that on certain occasions the number of inmates sharing
the cells with the first and third applicants exceeded the number of sleeping
places available. Nor does the Court lose sight that for weeks the personal
space afforded to the applicants were below three square metres (see paragraphs
25 and 26 above).
As regards the certificates prepared by the
remand prison administration in April 2009, the Court notes that those
documents were prepared more that three years after the applicants had been
detained. In this connection, it observes that on numerous occasions it has
held that documents prepared by the authorities after a considerable period of
time has passed since the relevant events took place cannot be viewed as
sufficiently reliable (see, among other authorities, Novinskiy
v. Russia, no. 11982/02, § 105, 10 February 2009). These
considerations hold true in the present case in respect of the certificates
prepared by the remand prison’s administration and presented by the Government
to substantiate their submissions on the issue.
Having regard to the above, the Court does not
accept that the Government have fully substantiated their argument that the
number of the inmates sharing the cells where the applicants were detained did
not exceed the capacity they were designed for. Accordingly, the Court agrees
with the first and third applicants that the cells in the remand prison where they
were detained were overcrowded. As a result of such overcrowding, the first and
third applicants’ detention did not meet the minimum requirement, as laid down
in the Court’s case-law (see, among many other authorities, Trepashkin
v. Russia (no. 2), no. 14248/05, § 113, 16 December 2010; Kozhokar
v. Russia, no. 33099/08, § 96, 16 December 2010; and Svetlana Kazmina
v. Russia, no. 8609/04, § 70, 2 December 2010).
Having regard also to the fact that the first and third applicants were
compelled to spend twenty-three hours per day in such overcrowded cells, the
Court finds that, between 16 December 2004 and 8 December 2005, they were
subjected to inhuman and degrading treatment in breach of Article 3 of the
Convention in remand prison no. IZ-77/2 in Moscow.
In view of the above, the Court does not
consider it necessary to examine the remainder of the parties’ submissions
concerning other aspects of the conditions of the applicants’ detention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicants complained under Article 5 § 1
(c) of the Convention that there had been no grounds to detain them. Referring
to Article 5 § 3, they complained of a violation of their right to a trial
within a reasonable time and alleged that the orders for their detention had
not been founded on sufficient reasons.
The relevant parts of Article 5 read as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
...
3. Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
The Government contested that argument. They
submitted that the applicants’ pre-trial detention had been in compliance with
the requirements set forth in Article 5 of the Convention.
The applicants maintained their complaint.
A. Admissibility
As regards the applicants’ complaint that their
detention was unlawful, the Court notes that on 16 December 2004 the
Khamovnicheskiy District Court of Moscow ordered the applicants’ placement in
custody because of the gravity of the charges laid against them. Their
detention was subsequently extended on several occasions by the domestic
courts.
The domestic courts acted within their powers in
making those decisions and there is nothing to suggest that they were invalid
or unlawful under domestic law. The question whether the reasons for the
decisions were sufficient and relevant is analysed below in connection with the
issue of compliance with Article 5 § 3 (see Khudoyorov v. Russia, no.
6847/02, §§ 152 and 153, ECHR 2005-X).
The Court finds that the applicants’ detention
was compatible with the requirements of Article 5 § 1 of the Convention. It
follows that this complaint must be rejected as manifestly ill-founded pursuant
to Article 35 §§ 3 and 4 of the Convention.
As regards the applicants’ complaint of a
violation of their right to trial within a reasonable time or to release
pending trial, the Court finds that it 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. General principles
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. 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 v. Italy [GC],
no. 26772/95, §§ 152-53, ECHR 2000-IV).
The presumption is in favour of release. As the
Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between
either bringing an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused must be
presumed innocent, and the purpose of the provision under consideration is
essentially to ensure his release once the continuation of his detention has
ceased to be reasonable. A person charged with an offence must always be
released pending trial unless the State can show that there are “relevant and
sufficient” reasons to justify the continued detention (see, among other
authorities, Castravet v. Moldova,
no. 23393/05, §§ 30-32, 13 March 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96,
§ 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4,
Series A no. 8).
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; and Ilijkov v. Bulgaria, no.
33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must
examine all the facts arguing for or against the existence of a genuine
requirement of public interest justifying, 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 not the Court’s task to establish such facts
and take the place of the national authorities who ruled on the applicant’s
detention. It is essentially on the basis of the reasons given in the domestic
courts’ decisions and of the true 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 Korchuganova v. Russia,
no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152).
2. Application to the present case
The applicants were placed in custody on 14
December 2004. On 8 December 2005 the trial court convicted them of a
criminal offence and immediately released them on probation for three years.
The period of custody to be taken into consideration accordingly lasted almost
twelve months.
The Court observes that the applicants were
apprehended on the premises on which the impugned offences had allegedly been
committed. It accepts therefore that their detention could have initially been
warranted by a reasonable suspicion of their involvement in these offences. It
remains to be ascertained whether the judicial authorities gave “relevant” and
“sufficient” grounds to justify extending the applicants’ detention and whether
they displayed “special diligence” in the conduct of the proceedings.
While the investigation was pending the domestic
courts consistently relied on the gravity of the charges as the main factor for
the assessment of the applicants’ potential to abscond, reoffend or obstruct
the course of justice. They did not demonstrate the existence of concrete facts
in support of their conclusions.
The Court has repeatedly held that, although the
severity of the sentence handed down is a significant element in the assessment
of the risk of an accused absconding or reoffending, the need to extend detention
cannot be assessed from a purely abstract point of view, taking into
consideration only the gravity of the offence. Nor can continuation of the
detention be used to anticipate a custodial sentence (see Letellier v. France,
judgment of 26 June 1991, § 51, Series A no. 207; see also 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 cases, such as the
present one, where the characterisation in law of the facts - and thus the
sentence faced by the applicant - was determined by the prosecution without
judicial examination of whether the evidence collected supported a reasonable
suspicion that the applicant had committed the imputed offence. Indeed, the
initial charge of the violent overthrow of State power, which was a particularly
serious criminal offence according to the domestic classification, had been
accepted by the District Court on 8, 9 and 11 February 2005 without any
inquiry having been carried out, although this was later amended to a lesser
charge of participation in mass disorder (see paragraphs 12 and 13 above).
Nevertheless, when the same court extended the applicant’s pre-trial detention
on 7 April 2005 (see paragraph 17 above), its reasoning remained
unaffected by such re-classification (compare Dolgova, cited above, § 42).
After the case had been submitted for trial in
June 2005 the trial court used the same summary formula to refuse the applications
for release and extend the pre-trial detention of forty persons,
notwithstanding the defence’s express request that each detainee’s situation be
dealt with individually. The Court has already found that the practice of
issuing collective detention orders without a case-by-case assessment of the
grounds for detention in respect of each detainee is incompatible, in itself,
with Article 5 § 3 of the Convention (see Shcheglyuk
v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dologova, cited above,
§ 49). By extending the applicants’ detention by means of collective
detention orders the domestic authorities gave no real consideration to their
individual circumstances. It is even more striking that the extension order of
20 June 2005 only stated that all defendants should remain in custody
without giving any grounds whatsoever for their continued detention.
The Court further observes that when deciding
whether a person should be released or detained, the authorities have an
obligation under Article 5 § 3 to consider alternative measures
of ensuring his or her appearance at trial. This provision of the Convention
enshrines not only the right to “trial within a reasonable time or to release
pending trial” but also lays down that “release may be conditioned by
guarantees to appear for trial” (see Jabłoński,
cited above, § 83). In the present case the authorities never considered
the possibility of ensuring the applicants’ attendance by the use of a more
lenient preventive measure.
The Court has frequently found a violation of
Article 5 § 3 of the Convention in Russian cases where the domestic courts extended
an applicant’s detention relying essentially on the basis of the gravity of the
charges and using formulaic reasoning without addressing concrete facts or
considering alternative preventive measures (see Belevitskiy
v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007;
Khudobin v. Russia,
no. 59696/00, §§ 106 et seq., ECHR 2006-XII.); Mamedova v. Russia,
no. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova , cited above, §§ 38 et
seq.; Khudoyorov , cited
above, §§ 172 et seq.; Rokhlina,
cited above, §§ 63 et seq.; Panchenko ,
cited above, §§ 101 et seq.; and Smirnova v.
Russia, nos. 46133/99
and 48183/99, §§ 65 et seq., ECHR 2003-IX).
The Court further notes that it has previously
examined similar complaints lodged by the applicants’ co-defendants and found a
violation of their rights set out in Article 5 § 3 of the
Convention (see Dolgova, cited above, §§ 38-50, and Lind, cited
above, §§ 74-86). Having regard to the material in its possession, 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.
In view of the above, the Court considers that
by failing to address concrete facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the charges, the
authorities extended the applicants’ detention on grounds which, although
“relevant”, cannot be regarded as “sufficient”. In these circumstances it is
not necessary to examine whether the proceedings were conducted with “special
diligence”.
There has therefore been a violation of Article
5 § 3 of the Convention.
III. 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 1,000,000 euros (EUR) in
respect of non-pecuniary damage.
The Government submitted that the applicants’
rights had not been infringed and no compensation should be awarded to them. In
any event, they considered the applicants’ claim excessive.
The Court observes that the applicants spent
almost a year in custody with their detention having been based on insufficient
grounds. The first and the third applicants were detained in inhuman and
degrading conditions. Making its assessment on an equitable basis, it awards
EUR 6,000 to each of the first and third applicants and EUR 2,000 to the second
applicant, plus any tax that may be chargeable thereon.
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 rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the conditions
of detention of the first and third applicants and the excessive length of the
applicants’ pre-trial detention admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of detention in
respect of the first and third applicants in remand prison no. IZ-77/2 in Moscow from 16 December 2004 to 8 December 2005;
3. Holds that there has been a violation of
Article 5 § 3 of the Convention;
4. Holds
(a) that the respondent State is to pay, within
three months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to
be converted into Russian roubles at the rate applicable at the date of
settlement:
(i) EUR 6,000 (six
thousand euros) to each of the first and third applicants, plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two
thousand euros) to the second applicant, plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(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;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 23 October
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
