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FIRST
SECTION
CASE OF SOLOVYEVY v. RUSSIA
(Application no. 918/02)
JUDGMENT
STRASBOURG
24
April 2012
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 Solovyevy 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,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 918/02) 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 Russian nationals, Mr Mikhail Viktorovich
Solovyev and Mr Vladimir Viktorovich Solovyev (“the
applicants”), on 25 November 2000.
- The applicants were
represented by Mr A. Chumakov, a lawyer practising in the town of
Tyumen. The Russian Government (“the
Government”) were represented by Mr P. Laptev, former
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicants alleged, in particular, that during the
proceedings which resulted in the decision of 17 October 2000
they had not been represented by a lawyer, that the criminal
proceedings against them had been too long and that the conditions of
the detention on remand of the second applicant had been appalling.
They complained that the prison administration had refused to certify
their authority forms for the proceedings before this Court, that the
criminal proceedings had been unfair and that they had not been able
to attend the appeal hearing of 18 July 2001. The first
applicant complained in his letter of 14 June 2004 that his detention
on remand had been too long and that the courts had charged him for
the services of a legal-aid lawyer, which he had allegedly never
accepted. The second applicant made a complaint about the length of
his detention on remand and also a number of grievances (letter of 1
March 2006) about the conditions of his transportation, the inability
to attend some of the appeal hearings and the courts’ failure
to examine some of his appeals against the detention orders.
- On
10 May 2006 the President of the First Section decided to communicate
the application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, who are brothers, were born in 1977 and 1957 respectively
and at present reside in the town of Yekaterinburg in the Sverdlovsk
Region.
A. Institution of criminal proceedings
- In
May 1993 the bodies of three persons were found in a street in
Yekaterinburg.
- On
29 March 1994 the second applicant was charged with two counts of
manslaughter and unlawful possession of weapons. Ten days later, a
deputy prosecutor of the Ordzhonikidzevskiy District of Yekaterinburg
discontinued the criminal proceedings against the second applicant
because he was found to have acted in self-defence and the use of
force had been justified.
- On
14 November 1997 the second applicant was charged with having
severely injured a Mr M.
- In
February 1998 the Sverdlovsk Regional Prosecutor reopened the
criminal proceedings against the second applicant on the charges of
manslaughter and arms possession and remitted the case for further
investigation. On 17 November 1998 the investigator at the
Ordzhonikidzevskiy District prosecutor’s office dropped the
arms possession charge.
- In
December 1998 the two sets of criminal proceedings were joined and
the second applicant was issued with the bill of indictment. He was
charged with one count of manslaughter, causing severe bodily
injuries, and unlawful restriction of liberty.
- On
15 December 1998 the first applicant was also charged with unlawful
restriction of liberty.
B. Trial proceedings
1. Committal for trial and the applicants’ arrest
- On 1 February 1999 the prosecution concluded the
investigation and transmitted the case for an examination on the
merits to the Ordzhonikidzevskiy District Court of Yekaterinburg. On
26 March 1999 the case was assigned to a judge of that court. The
applicants were committed for trial and on 1 December 1999 the
court listed the first hearing for 17 October 2000.
- At
the hearing of 17 October 2000 the applicants were initially
represented by lawyer R. The chamber consisted of two lay assessors
and presiding judge B. The applicants challenged the presiding judge,
alleging bias. The lay assessors examined and rejected the challenge
as unfounded.
- Thereafter
the applicants informed the court that they had dismissed lawyer R.
and appointed lawyer Ch. as a replacement. Lawyer Ch. was not present
at the hearing.
- After lawyer R. had been dismissed, the prosecutor
made a request for the applicants to be detained pending trial, which
the Ordzhonikidzevskiy District Court examined and accepted with the
following reasoning:
“[the applicants are] charged with murder, the
intentional infliction of severe injuries ... and unlawful
confinement ...
Before the hearing they unsuccessfully sought the
removal of the presiding judge and influenced participants in the
proceedings, including the victim, Mr M., who asked the court not to
examine the case because the defendants had not committed any
criminal offence against him. They also appealed against the decision
by which the court hearing had been fixed.
[The applicants are] charged with serious and especially
serious criminal offences ... When they were under a written
undertaking not to leave the town, they attempted to obstruct the
thorough and full examination of the case. The prosecutor has lodged
a request in that connection; having regard to the above-mentioned
considerations, the court finds it to be substantiated and authorises
... [the applicants’] placement in custody.”
- The applicants were taken into custody on 17 October
2000. They appealed against the decision ordering their detention,
arguing that their procedural rights had been breached as a result of
the absence of their lawyer at the hearing. Among other things, they
requested the court to secure their attendance during the appeal
hearing.
- The
District Court listed the next hearing for 18 December 2000.
- The decision of 17 October 2000 was upheld on appeal
on 9 November 2000 by the Sverdlovsk Regional Court. The hearing
took place with the participation of the prosecutor, the alleged
victim and the applicant’s lawyer Ch. The applicants were
detained in the remand prison and were not taken to the hearing.
Their request for personal attendance remained unanswered.
2. Requests for removal of the bench; detention order
of 1 March 2001
- At
the hearing of 18 December 2000 the applicants and their lawyer
requested the removal of the entire bench including the presiding
judge. The District Court dismissed their requests and adjourned the
proceedings until 1 March 2001 because the victim had arrived at
the hearing in an inebriated state.
- On
9 February 2001 the Sverdlovsk Regional Court, in the presence
of the applicants’ lawyer, upheld that decision. The applicants
were neither invited, nor present at the hearing.
- On 1 March 2001 the presiding judge, in an
interlocutory decision, extended the applicants’ detention and
withdrew from the proceedings because he felt offended by the conduct
of the applicant’s lawyer. No reasons or time-limit for the
extension were given. The judge noted that the decision was not
amenable to appeal.
- According
to the Government, the second applicant brought an appeal against
that decision. Since it had been lodged too late and the applicant
never asked for restoration of the time-limit, the appeal court never
examined it.
- The
second applicant disagreed with the Government on that point. He
submitted a copy of a letter from the Deputy President of the
Sverdlovsk Regional Court dated 26 March 2001 informing the President
of the Ordzhonikidzevskiy District Court that the second applicant
had requested a copy of the decision of 1 March 2001 and the
restoration of the time-limit for appeal.
- According
to the second applicant, he had appealed against the decision of 1
March 2001 once in receipt of a copy of it, and had complied with the
time-limit for appeal.
3. Detention order of 17 April 2001
- On 17 April 2001 a new presiding judge listed a
hearing for 7 June 2001 and extended the applicants’
detention, without citing any grounds or setting a time-limit.
- The
applicants alleged that they had not received that decision.
Nonetheless, they appealed against it on 23 and 28 May 2001. In their
appeals they disagreed with the decision to list a hearing for 7 June
2001 and argued that the case ought to be sent for an additional
investigation to the prosecutor. The appeals did not contain any
complaints concerning the applicants’ continued detention.
- On 18 July 2001 the Sverdlovsk Regional Court
upheld the decision, rejecting the applicants’ arguments
concerning the decision to list a hearing for 7 June 2001. By this
time the first applicant had already been released (see paragraph 31
below)
- The
Government submitted that the second applicant and his lawyer had not
taken part in the hearing.
4. Interlocutory decisions and the detention order of 7
June 2001
(a) Rejection of a request for additional
investigative measures
- On
4 June 2001 the Ordzhonikidzevskiy District Court dismissed the
applicants’ request for an additional investigation. The
applicants’ appeal against that decision was dismissed by the
Sverdlovsk Regional Court on 18 July 2001.
(b) Adjournment of the proceedings and
detention order of 7 June 2001
- On 7 June 2001 the first applicant was released on an
undertaking not to leave his place of residence.
- On the same date the applicants asked the District
Court to adjourn the proceedings because their lawyer was on holiday.
The court acceded to the request, adjourned the proceedings and
extended the second applicant’s detention on remand; no reasons
or time-limit for the extension were given.
- The
second applicant appealed against the decision, claiming that it had
not been given by a lawful tribunal.
- On
20 July 2001 the Sverdlovsk Regional Court dismissed the appeal. The
second applicant was not present at the appeal hearing.
5. Detention order of 4 September 2001
(a) Legal representation issues
- On
3 September 2001 Ms S. was appointed to act as the applicants’
counsel.
- At
the hearing held on the following day the second applicant, assisted
by Ms S., asked the District Court to release him against a written
undertaking not to leave the town and to replace Ms S. with Mr R.
and Ms G., representatives of a certain NGO. The
Ordzhonikidzevskiy District Court dismissed his application for
release on the grounds that he was charged with serious criminal
offences and was pleading not guilty. The District Court held that
“there were no grounds to change the preventive measure”.
It refused to accept the appointment of Mr R. and Ms G. because
they had not produced any written authority to act.
- On 5 September 2001 the applicants again asked the
court to appoint Mr R. and Ms G. The hearing was postponed to allow
the applicants to find new lawyers.
- According
to the second applicant, on 11 September 2001 he submitted a
statement of appeal against the decision of 4 September 2001 to the
administration of the remand facility where he was being held. On
12 September 2001 he sent a letter by registered mail to the
Sverdlovsk Regional Court.
- In
support of his allegations, the second applicant submitted a note
(no. 68141-8367) issued by the prison administration of IZ-66/1 dated
28 October 2005 which confirmed that in September 2001 the
second applicant had dispatched a complaint dated 7 September 2001 to
the Sverdlovsk Regional Court. According to the second applicant, his
appeal was left unexamined.
- The
Government submitted that the second applicant had never properly
filed an appeal against the decision of 4 September 2001 and that the
statement of appeal had only been received by the court after
17 December 2001 as an annex to another document. They conceded
that the appeal had been left unexamined.
- According to the Government, between 28 November 2001
and 27 May 2002 there were repeated delays in the criminal
proceedings due to changes of lawyers, their failure to appear and
sickness on the part of the parties.
(b) Adjournment of the proceedings until 1
April 2002
- At
the hearing of 17 December 2001 the second applicant successfully
requested an adjournment because his lawyer had failed to appear. The
hearing was postponed until the following day.
- On
19 December 2001 the District Court, at the second applicant’s
request, adjourned the proceedings until 24 December 2001 to enable
the applicant and his new lawyer to study the case file together.
- The subsequent hearings scheduled for 24 and 25
December 2001 were postponed because the lawyer for the first
applicant had failed to appear. The proceedings were stayed until 1
April 2002. The applicants claimed that on 31 December 2001 they had
appealed against the decisions of 24 and 25 December 2001, but
that their appeals had not been examined.
6. Detention order of 1 April 2002
- At
the hearing of 1 April 2002 the second applicant’s lawyer asked
the Ordzhonikidzevskiy District Court to remit the case for further
investigation and release the applicant on bail or on a written
undertaking not to leave the town. The District Court refused the
requests, on the ground that the applicant was charged with a serious
criminal offence and was pleading not guilty.
- On
4 April 2002 the second applicant appealed against the decision of
1 April 2002, but the appeal was never examined.
- The
Government submitted that on 26 July 2002 the Ordzhonikidzevskiy
District Court had extended the time-limit for lodging an appeal
against the decision of 1 April 2002. According to them, there was no
evidence in the case file that such an appeal was subsequently
lodged.
7. Attempt to return the case for further
investigation. Detention order of 27 May 2002
- On 27 May 2002 the Ordzhonikidzevskiy District Court
gave interlocutory decisions whereby it dismissed the applicants’
request for the bench to stand down, remitted the case for further
investigation and extended the second applicant’s detention on
remand. As regards the grounds for the extension, the District Court
noted that the second applicant was charged with a serious criminal
offence and that he was pleading not guilty and had threatened the
victim.
- By
the same decision the court also charged the first applicant for the
services of a legal-aid lawyer whom he had allegedly never accepted
as his counsel.
- On
17 July 2002 the Sverdlovsk Regional Court returned the case file to
the District Court for the correction of certain procedural defects.
The Regional Court also noted that in the course of the appeal
hearing the applicants’ lawyer had complained that on 4 April
2002 he had lodged an appeal against the decision of the District
Court of 1 April 2002. The lawyer had provided the Regional Court
with a copy of his statement of appeal bearing the stamp of the
District Court and showing that it had received the statement on
4 April 2002. The Regional Court instructed the District Court
to investigate whether that statement had been lodged in accordance
with the requirements established by law.
- On 21 August 2002 the Sverdlovsk Regional Court upheld
the decisions of 27 May 2002 concerning the request for the bench to
stand down and the extension of the applicant’s detention.
However, it did not accept the District Court’s view that the
case should be returned for further investigation, but instructed it
to examine the merits of the charges. The applicants’ lawyer
was not summoned to the hearing.
8. Detention order of 1 July 2002 (period to 1 October
2002)
- On
1 July 2002 a new Code of Criminal Procedure became effective.
- On
the same day the Ordzhonikidzevskiy District Court extended the
applicant’s detention until 1 October 2002, holding that the
second applicant was charged with a serious criminal offence and that
he was pleading not guilty and had threatened the victim. The second
applicant and his lawyer had not been summoned to the hearing. The
representative of the prosecution authorities did not attend.
- The
second applicant appealed against the decision of 1 July 2002, also
alleging that he had only received a copy of that decision on 4 July
2002. The applicant provided the Court with a copy of his statement
of appeal. The document bore the stamp of the District Court
indicating that the appeal had been lodged on 12 July 2002.
- On
21 August 2002 the Sverdlovsk Regional Court refused to examine the
second applicant’s appeal against the decision of 1 July 2002
and remitted the matter to the District Court. The Regional Court
held as follows:
“In a decision [of 1 July 2002] [the second
applicant’s] detention on remand was extended until 1 October
2002.
[T]he second applicant] lodged several appeals against
that decision; [these] were lodged outside the time-limit established
by the law. From the case file it cannot be established when [the
second applicant] learned about the decision. Moreover, his lawyer,
Mr Kh., ... learned about that decision only while taking part
in the hearing and has expressed his wish to appeal against it ...
In view of the foregoing, [the court] decides to stay
the appeal proceedings, establish the date when [the second
applicant] was issued with the decision [of 1 July 2002], include
that notification in the case file, invite him to apply for extension
of the time-limit for lodging an appeal against that decision ...,
accept an appeal from Mr Kh., and subsequently fix an appeal
hearing.”
- Two
days later the Regional Court received an application from the second
applicant’s lawyer seeking an extension of the time-limit for
lodging an appeal against the decision of 1 July 2002. According to
the Government, there was no indication in the case file that the
request was examined.
9. Detention order of 1 October 2002 (period to 1
January 2003)
- On
1 October 2002 the District Court extended the second applicant’s
detention for three months, that is, until 1 January 2003. The court
cited the same grounds for the extension as those in the detention
orders of 27 May and 1 July 2002. Neither the second applicant nor
his lawyer was present at the hearing.
- On 13 November 2002 the Sverdlovsk Regional Court
quashed the decision of 1 October 2002 and remitted the matter for
fresh examination to the District Court. The Regional Court reasoned
that, in breach of the rules of criminal procedure, the District
Court had not ensured the presence of the second applicant and his
lawyer at the hearing of 1 October 2002. It held that the second
applicant’s detention “should remain unchanged” in
the meantime, because it had not established any ground to release
him. The second applicant was not taken to the appeal hearing, even
though he had sought leave to appear. His lawyer attended that
hearing.
10. Extension order of 20 November 2002
- On
20 November 2002 the Ordzhonikidzevskiy District Court listed a
hearing for 17 December 2002 and extended the second applicant’s
detention, without citing any grounds or setting a time-limit. The
second applicant and his lawyer were not summoned to the hearing.
- On
7 March 2003 the Sverdlovsk Regional Court dismissed the second
applicant’s appeal against the decision of 20 November 2002
because no procedural or substantive violations had been established.
11. Re-examination of the detention order of 1 October
2002 and trial hearings
- On
15 December 2002 the District Court re-examined the question of the
second applicant’s detention (which it had previously examined
on 1 October 2002) and retrospectively extended his detention
for three months, until 1 January 2003. It held that the second
applicant was charged with serious criminal offences and that, if
released, he could pervert the course of justice. A new lawyer, Mr
Ts., and the second applicant attended the hearing.
- The
second applicant and Mr Kh., his other lawyer, appealed against that
decision. The second applicant also sought leave to appear before the
appeal court.
- According
to the Government, the District Court fixed six trial hearings
between 17 and 24 December 2002. They were adjourned because the
second applicant’s lawyer failed to appear.
- On
8 January 2003 the Sverdlovsk Regional Court examined the grounds of
the second applicant’s appeal against the decision of
15 December 2002 and upheld the decision. According to the
second applicant, neither he nor his lawyer was summoned to the
appeal hearing. According to the Government, the second applicant’s
lawyer was given notice of the appeal hearing but failed to appear or
to notify the Regional Court of the reasons for his absence. The
Government provided the Court with a copy of the notice addressed to
the prosecutor and to the second applicant’s lawyer. The notice
did not bear the signature of any court official.
12. Interlocutory orders regarding legal fees and
requests for removal
- On
15 December 2002 the Ordzhonikidzevskiy District Court ordered that
the second applicant should pay 258 Roubles (RUB) (less than 10 euros
(EUR)) in legal fees. It appears that the second applicant did not
appeal against that order.
- On
25 December 2002 the District Court dismissed requests by the
applicants and their co-defendants for the removal of the prosecutor,
the presiding judge and one of the applicants’ lawyers, Mr S.
The applicants alleged that they had not received that decision and,
therefore, could not appeal against it.
13. Detention order of 25 December 2002 (period to 1
April 2003) and trial hearings
- On
25 December 2002 the Ordzhonikidzevskiy District Court extended the
second applicant’s detention to 1 April 2003. It held that the
second applicant was charged with serious criminal offences, the
victims and witnesses had not yet been questioned, and that,
therefore, the detention should be extended. The second applicant and
his lawyer Mr Kh. attended the hearing.
- From 13 January to 7 February 2003 the District Court
fixed five hearings which were adjourned owing to the absence of the
second applicant’s lawyer. On 18 February 2003, at the second
applicant’s request, he was assigned new counsel. The
proceedings were stayed until 13 March 2003 to allow the new
lawyer time to study the case file.
- The
hearings of 13 and 14 March 2003 never took place because the second
applicant was ill.
- On
7 March 2003 the Sverdlovsk Regional Court rejected appeals by the
second applicant and his lawyer against the extension order of
25 December 2002 because they had been lodged outside the
time-limit. It asked the District Court to determine whether the
time-limit could be extended. According to the second applicant, the
District Court did not take any action on the matter. The Government
did not comment on this.
14. Detention order of 26 March 2003 (period to 1 July
2003)
- On 26 March 2003 the Ordzhonikidzevskiy District Court
extended the second applicant’s detention to 1 July 2003. The
court noted that he had no criminal record, that he had a permanent
place of residence and work, that he was the breadwinner of a family
with two minor children and that he suffered from several illnesses.
On the other hand, he was charged with serious criminal offences,
victims and witnesses had not yet been heard, and the case had been
pending for a long time, owing mostly to the second applicant’s
conduct. The second applicant, if released, might therefore obstruct
the proceedings.
- According
to the second applicant, on 3 April 2003 he and his lawyer lodged an
appeal against that decision. The appeal was never examined.
- According
to the Government, no appeal was ever lodged.
- The hearing on the merits was postponed again until 3
April 2003, and then on three further occasions until 8, 9 and 28
April 2003.
15. Detention order of 26 June 2003 (period to 1
October 2003)
- On
25 June 2003 the applicants sought the removal of the entire bench
and the prosecutor. The court dismissed these requests.
- On 26 June 2003 the Ordzhonikidzevskiy District Court
discontinued the criminal proceedings against the first applicant in
full as time-barred, and ruled out certain evidence as inadmissible.
In the same decision the trial court discontinued the criminal
proceedings against the second applicant in respect of the
manslaughter charges because the statutory limitation period had
expired, and extended his detention to 1 October 2003. The court
noted that the second applicant was charged with serious criminal
offences and that the trial was pending.
- The
applicants and their lawyer appealed against the decision of 26 June
2003 but subsequently withdrew their appeals.
C. Partial discontinuance of proceedings and conviction
- On
10 July 2003 the Ordzhonikidzevskiy District Court discontinued the
criminal proceedings against the second applicant in respect of the
charges of unlawful confinement because the conduct in question could
not be classed as a criminal offence.
- On
the same day the District Court found the second applicant guilty of
causing bodily injuries and sentenced him to one year’s
imprisonment. He was released on a written undertaking not to leave
the town pending the appeal proceedings.
- On 15 July and 12 August 2003 the second applicant
lodged appeals against the conviction. On an unspecified date his
lawyer appealed against the judgment of 10 July 2003.
- On
24 February 2004 the second applicant and his lawyer withdrew their
appeals.
- On 3 March 2004 the Sverdlovsk Regional Court accepted
the withdrawal and discontinued the appeal proceedings. On the same
day the applicant’s written undertaking not to leave the town
was cancelled.
D. Conditions of detention
- The
second applicant submitted that between 17 October 2000 and 10 July
2003 he had been kept in a cell measuring twenty square metres. The
number of inmates at times reached thirty and since the number of
beds was insufficient the inmates had to take turns to sleep. The
cell also had no proper ventilation.
- The
Government responded by producing a certificate (no. 68/I1-5780)
issued by the head of prison IZ-66/1 in Yekaterinburg dated 12 July
2006. The certificate confirmed that the second applicant had been
detained in that prison on two occasions: between 18 October 2000 and
10 April 2003 and between 18 April and 10 July 2003. During the
period from 10 to 18 April 2003 the applicant had been held in
correctional facility FGU IK-2 of the Sverdlovk Region.
- The
certificate stated that the second applicant had been detained in the
following cells: no. 112 (measuring sixty-nine square metres and
containing eleven beds), no. 201 (measuring fifty-one square metres
and containing twelve beds), no. 222 (measuring twenty square metres
and containing four beds), no. 311 (measuring thirty-one square
metres and containing seven beds), and no. 537 (measuring
thirty-eight square metres and having nine beds).
- According
to the certificate, all the cells had glazed windows, adequate
sleeping arrangements, ventilation and were regularly disinfected.
The inmates, including the second applicant, never made any
complaints about the conditions of their detention.
- The Government were unable to provide specific figures
concerning the number of inmates in that prison for the year 2000
because the relevant logs had been destroyed after expiry of the
time-limit for storage. As to the years 2001-2003, they provided the
following data concerning the number of inmates in the cells in
question:
|
Cells/Months
|
No. 112 (11 beds)
|
No. 201
(12 beds)
|
No. 222
(4 beds)
|
No. 311
(7 beds)
|
No. 537
(9 beds)
|
|
Jan. 2001
|
n/a
|
38
|
22
|
45
|
n/a
|
|
Feb. 2001
|
n/a
|
36
|
10
|
32
|
n/a
|
|
Mar. 2001
|
n/a
|
25
|
12
|
35
|
n/a
|
|
Apr. 2001
|
n/a
|
26
|
41
|
40
|
n/a
|
|
May 2001
|
n/a
|
33
|
42
|
42
|
n/a
|
|
June 2001
|
n/a
|
26
|
41
|
40
|
n/a
|
|
July 2001
|
n/a
|
27
|
n/a
|
41
|
n/a
|
|
Aug. 2001
|
n/a
|
n/a
|
n/a
|
n/a
|
25
|
|
Sep. 2001
|
n/a
|
n/a
|
n/a
|
n/a
|
25
|
|
Oct. 2001
|
n/a
|
32
|
20
|
18
|
n/a
|
|
Nov. 2001
|
n/a
|
n/a
|
n/a
|
n/a
|
8
|
|
Dec. 2001
|
n/a
|
28
|
9
|
5
|
n/a
|
|
Jan. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
n/a
|
|
Feb. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
24
|
|
Mar. 2002
|
n/a
|
24
|
n/a
|
24
|
n/a
|
|
Apr. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
26
|
|
May 2002
|
n/a
|
17
|
16
|
25
|
n/a
|
|
June 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
32
|
|
July 2002
|
n/a
|
18
|
8
|
1
|
n/a
|
|
Aug. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
32
|
|
Sep. 2002
|
n/a
|
18
|
6
|
6
|
n/a
|
|
Oct. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
13
|
|
Nov. 2002
|
n/a
|
22
|
2
|
24
|
n/a
|
|
Dec. 2002
|
n/a
|
n/a
|
n/a
|
n/a
|
7
|
|
Jan. 2003
|
n/a
|
18
|
n/a
|
13
|
n/a
|
|
Jan. 2003
|
n/a
|
20
|
6
|
30
|
n/a
|
|
Feb. 2003
|
n/a
|
19
|
7
|
10
|
n/a
|
|
Mar. 2003
|
n/a
|
16
|
12
|
13
|
n/a
|
|
Apr. 2003
|
n/a
|
n/a
|
n/a
|
n/a
|
18
|
|
Apr. 2003
|
13
|
16
|
6
|
5
|
n/a
|
|
May 2003
|
n/a
|
17
|
16
|
21
|
n/a
|
|
June 2003
|
n/a
|
17
|
14
|
4
|
n/a
|
|
July 2003
|
n/a
|
19
|
9
|
5
|
n/a
|
- According
to the Government, the second applicant had a shower on a weekly
basis for fifteen minutes. The temperature in the cells was no more
that twenty degrees in summer and no less than eighteen degrees in
winter. All cells had a toilet, separated from the rest of the cell
by a partition, and a sink.
- The
second applicant submitted that all the cells in which he was
detained had been heavily overcrowded and that the Government’s
description of the sleeping arrangements and partitioned toilets was
false.
- He submitted a witness statement dated 31 October 2006
by S. K., an inmate in cell no. 201, which confirmed that between 20
January 2003 and 20 June 2003 the cell had contained 35 to 40
inmates.
E. The second applicant’s other allegations
- The second applicant alleged that on 12 April 2001 the
prison authorities had refused to certify the authority forms for his
lawyer to represent him before the Court, citing its incompetence to
perform the requested actions. The case file contains an authority
form dated 10 April 2001 signed by the second applicant and an
authority form dated 22 April 2001 signed by the first applicant.
- On
18 December 2000, 1 March and 4 September 2001 the second applicant
was conveyed to the court room and back to the remand centre.
According to him, the prison vehicle had no heating and he was not
provided with any warm clothing. In addition, he had no opportunity
to use toilet facilities for three hours while in transit and was
given no meals during the whole day at the court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). On 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
A. Proceedings to examine the lawfulness of detention
- Upon receipt of the case file, the judge must
determine, in particular, whether the defendant should be held in
custody or released pending the trial hearings (Articles 222 § 5
and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the
new CCrP), and rule on any application by the defendant for release
(Article 223 of the old CCrP).
- At any time during the court proceedings the court may
order, vary or revoke any preventive measure, including detention on
remand (Article 260 of the old CCrP, Article 255 § 1 of the
new CCrP). Any such decision must be given in the deliberations room
and signed by all the judges on the bench (Article 261 of the old
CCrP, Article 256 of the new CCrP).
- An appeal against such a decision lies to the higher
court. It must be lodged within ten days and examined within the same
time-limit as an appeal against a judgment on the merits (Article 331
of the old CCrP, Article 255 § 4 of the new CCrP).
B. Time-limits for trial proceedings
97. Under the old CCrP,
within fourteen days of receipt of the case file (if the defendant
was in custody), the judge was required either: (1) to fix the trial
date; (2) to return the case for further investigation; (3) to stay
or discontinue the proceedings; or (4) to refer the case to a court
having jurisdiction to hear it (Article 221). The new CCrP empowers
the judge, within the same time-limit, (1) to refer the case to a
competent court; (2) to fix a date for a preliminary hearing; or (3)
to fix a trial date (Article 227). In the latter case, the trial
proceedings must begin no later than fourteen days
after the judge has fixed the trial date (Article 239 of the old
CCrP, Article 233 § 1 of the new CCrP). There are no
restrictions on fixing the date of a preliminary hearing.
- There
is no time-limit for the duration of the proceedings as a whole.
- Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten days
after it was lodged. In exceptional circumstances or 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
new CCrP establishes that the appeal court must start the examination
of the appeal no later than one month after it is lodged
(Article 374).
C. Rules on the detention regime in pre-trial detention
centres (as approved by Decree no. 148 of the Ministry of
Justice of 12 May 2000)
- Rule
42 provided that all inmates, whether suspects or defendants, had to
be given, among other things: a sleeping place; bedding consisting of
one mattress, one pillow and one blanket; bed linen consisting of two
sheets and a pillowcase; a towel; crockery and cutlery, including a
bowl, a mug and a spoon; and seasonal clothes (if the inmate had no
clothes of his own).
- Rule
44 stated that cells in pre-trial detention centres must be equipped
with, among other things, a table and benches with enough seating
space for the number of inmates, sanitation facilities, tap water,
day lamps and night time lighting.
- Rule
46 provided that prisoners were to receive food three times a day,
with warm meals provided in accordance with the norms laid down by
the Government of Russia.
- Under
Rule 47, inmates had the right to have a shower at least once a week
for at least fifteen minutes. They were to receive fresh bed linen
after they had taken a shower.
- Rule
143 provided that an inmate could receive visits from his lawyer,
family members or other persons, subject to written permission from
an investigator or an investigative body, the number of visits being
limited to two per month.
D. Order no. 7 of the
Federal Service for the Execution of Sentences dated 31
January 2005
- Order no. 7 of the Federal Service for the Execution
of Sentences of 31 January 2005 deals with the implementation of
the “Pre-trial detention centres 2006” programme.
- The
programme is aimed at improving the functioning of pre-trial
detention centres so as to ensure their compliance with the
requirements of Russian legislation. It expressly acknowledges the
issue of overcrowding in pre-trial detention centres and seeks to
reduce and stabilise the number of detainees in order to resolve the
problem.
- The programme mentions pre-trial detention centre
IZ-66/1 in the town of Yekaterinburg as being amongst the ones
affected. In particular, the programme states that on 1 July 2004 the
detention centre had a capacity of 2,255 inmates but in fact
accommodated 3,262 detainees, in other words, 44.6% more than the
permitted number.
III. Relevant
Council of Europe documents
- The
relevant extracts from the General Reports of the European Committee
for the prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
“46. Overcrowding is an issue of direct
relevance to the CPT’s mandate. All the services and activities
within a prison will be adversely affected if it is required to cater
for more prisoners than it was designed to accommodate; the overall
quality of life in the establishment will be lowered, perhaps
significantly. Moreover, the level of overcrowding in a prison,
or in a particular part of it, might be such as to be in itself
inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities
(work, education, sport, etc.) is of crucial importance for the
well-being of prisoners ... [P]risoners cannot simply be left to
languish for weeks, possibly months, locked up in their cells, and
this regardless of how good material conditions might be within the
cells. The CPT considers that one should aim at ensuring that
prisoners in remand establishments are able to spend a reasonable
part of the day (8 hours or more) outside their cells, engaged in
purposeful activity of a varied nature ...
48. Specific mention should be made of
outdoor exercise. The requirement that prisoners be allowed at least
one hour of exercise in the open air every day is widely accepted as
a basic safeguard ... It is also axiomatic that outdoor exercise
facilities should be reasonably spacious ...
49. Ready access to proper toilet facilities
and the maintenance of good standards of hygiene are essential
components of a humane environment ...
50. The CPT would add that it is particularly
concerned when it finds a combination of overcrowding, poor
regime activities and inadequate access to toilet/washing facilities
in the same establishment. The cumulative effect of such conditions
can prove extremely detrimental to prisoners.
51. It is also very important for prisoners
to maintain reasonably good contact with the outside world. Above
all, a prisoner must be given the means of safeguarding his
relationships with his family and close friends. The guiding
principle should be the promotion of contact with the outside world;
any limitations upon such contact should be based exclusively on
security concerns of an appreciable nature or resource considerations
...”
Extracts from the 7th General Report [CPT/Inf (97)
10]
“13. As the CPT pointed out in its 2nd
General Report, prison overcrowding is an issue of direct relevance
to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46).
An overcrowded prison entails cramped and unhygienic accommodation; a
constant lack of privacy (even when performing such basic tasks as
using a sanitary facility); reduced out-of-cell activities, due to
demand outstripping the staff and facilities available; overburdened
health-care services; increased tension and hence more violence
between prisoners and between prisoners and staff. This list is far
from exhaustive.
The CPT has been led to conclude on more than one
occasion that the adverse effects of overcrowding have resulted in
inhuman and degrading conditions of detention ...”
Extracts from the 11th General Report [CPT/Inf (2001)
16]
“28. The phenomenon of prison
overcrowding continues to blight penitentiary systems across Europe
and seriously undermines attempts to improve conditions of detention.
The negative effects of prison overcrowding have already been
highlighted in previous General Reports ...
29. In a number of countries visited by the
CPT, particularly in central and eastern Europe, inmate accommodation
often consists of large capacity dormitories which contain all or
most of the facilities used by prisoners on a daily basis, such as
sleeping and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation arrangements
in closed prisons and those objections are reinforced when, as is
frequently the case, the dormitories in question are found to hold
prisoners under extremely cramped and insalubrious conditions ...
Large-capacity dormitories inevitably imply a lack of privacy for
prisoners in their everyday lives ... All these problems are
exacerbated when the numbers held go beyond a reasonable occupancy
level; further, in such a situation the excessive burden on communal
facilities such as washbasins or lavatories and the insufficient
ventilation for so many persons will often lead to deplorable
conditions.
30. The CPT frequently encounters devices,
such as metal shutters, slats, or plates fitted to cell
windows, which deprive prisoners of access to natural light and
prevent fresh air from entering the accommodation. They are a
particularly common feature of establishments holding pre-trial
prisoners. The CPT fully accepts that specific security
measures designed to prevent the risk of collusion and/or criminal
activities may well be required in respect of certain prisoners ...
[E]ven when such measures are required, they should never involve
depriving the prisoners concerned of natural light and fresh air. The
latter are basic elements of life which every prisoner is entitled to
enjoy ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
second applicant complained that the conditions of his detention in
remand prison IZ-66/1 of Yekaterinburg as of 17 October 2000 had been
deplorable. He also complained that the conditions of his
transportation on 18 December 2000, 1 March and 4 September 2001 had
been appalling.
The
Court will examine these grievances under Article 3, which provides
as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions of the parties
- The
Government submitted that the second applicant had failed to exhaust
available domestic remedies. According to them, he could have applied
to the domestic courts with claims for compensation in respect of any
nonpecuniary damage allegedly resulting from the conditions of
his detention. The Government also considered that the conditions of
detention in the prisons concerned had not been incompatible with
Article 3 of the Convention.
- The
second applicant disagreed and maintained his complaints. He argued
that the data and figures provided by the Government were inaccurate.
B. The Court’s assessment
1. Admissibility
- The Court reiterates that it is not open to it to set
aside the application of the six-month rule solely because the
Government have not made a preliminary objection to that effect (see
Blečić v. Croatia [GC], no. 59532/00, §
68, ECHR 2006 III).
- The
Court will only examine the second applicant’s complaints
raised in the application form dated 7 July 2001, that is, those
concerning the allegedly appalling conditions of detention in IZ-66/1
of Yekaterinburg. The additional complaints, about the conditions of
his transportation during his detention on remand, were submitted on
1 March 2006 (see paragraph 3), that is, more than six months
after the second applicant’s detention on remand ended on
10 July 2003. It follows that these new complaints were
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
- In
as much as the Government claim that the second applicant has not
complied with the rule on exhaustion of domestic remedies, the Court
finds that the Government have not specified with sufficient clarity
what type of action would have been an effective remedy in their
view, nor have they provided any further information as to how such
an action could have prevented the alleged violation or its
continuation, or provided the applicant with adequate redress. Even
if the second applicant, who at the relevant time was still in
detention pending trial, had been successful, it is unclear how a
claim for damages could have afforded him immediate and effective
redress. In the absence of such evidence, and having regard to the
relevant principles, the Court finds that the Government have not
substantiated their claim that the remedy or remedies the applicant
allegedly failed to exhaust were effective ones (see, among other
authorities, Kranz v. Poland, no. 6214/02, § 23, 17
February 2004, and Skawinska v. Poland (dec.), no. 42096/98,
4 March 2003). For the reasons outlined above, the Court finds that
this part of the application cannot be rejected for nonexhaustion
of domestic remedies (see also Popov v. Russia, no. 26853/04,
§§ 204-06, 13 July 2006; Mamedova v. Russia,
no. 7064/05, §§ 55-58, 1 June 2006; and Kalashnikov v.
Russia (dec.), no. 47095/99, ECHR 2001 XI (extracts)).
- The
Court accepts the accuracy of the dates of the second applicant’s
detention as submitted by the Government, and notes the essentially
continuous character of his detention from 17 October 2000 to 10 July
2003 in IZ-66/1, which was interrupted by a prison transfer on one
occasion only, in April 2003, for an overall period of a mere seven
days. It further notes that his grievances about the detention
facility in issue all concern the same problem, namely overcrowding
and the general lack of living space. In view of this, the Court
finds that the said period of detention should be regarded as a
“continuing situation” for the purposes of the
calculation of the six-month timelimit (see Aleksandr
Matveyev v. Russia, no. 14797/02, §§ 67-68, 8 July
2010; Igor Ivanov v. Russia, no. 34000/02, § 30,
7 June 2007; Benediktov v. Russia, no. 106/02, § 12, 10
May 2007; Guliyev v. Russia,
no. 24650/02, § 31, 19 June 2008 and compare to Maltabar
and Maltabar v. Russia, no. 6954/02, §§ 82-84,
29 January 2009). It thus finds that the second applicant lodged
his complaints about the conditions of detention during the said
period in good time.
- In
the light of the parties’ submissions, the Court finds that
this part of the case raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes that these complaints are not manifestly
illfounded within the meaning of Article 35 § 3 (a) of the
Convention. No other grounds for declaring them inadmissible have
been established.
2. Merits
- The
Court would note that the parties disagree on many aspects of the
second applicant’s conditions of detention, including the size
of the cells, the number of beds, and the number of detainees in the
cells. Most importantly, the Government deny that the cells in
question were overcrowded or cramped, and have submitted official
certificates to that effect provided by the authorities of the
detention centres in question and partly covering the period in
question, whereas the second applicant insists on his initial account
of events.
- Having
studied the documents submitted by the parties, the Court finds that
it need not resolve the parties’ disagreements on all of the
aforementioned points as the case file contains sufficient
documentary evidence to confirm the second applicant’s
allegations of severe overcrowding in pre-trial detention facility
IZ-66/1 in Yekaterinburg, which is in itself sufficient to conclude
that Article 3 of the Convention has been breached.
- The
Court would note that the existence of a deplorable state of affairs
in that detention facility may be inferred from the information
contained in Order no. 7 of the Federal Service for the Execution of
Sentences of 31 January 2005 (see paragraphs 105-107 above), which
expressly acknowledges the issue of overcrowding in that detention
centre in 2004.
- The
Court also observes that it has previously
examined the question of the conditions of detention in IZ-66/1 in
2000, 2002 and 2003 in its judgments in the cases of
Mukhutdinov v. Russia, no. 13173/02, §§ 80 92,
10 June 2010, and Zakharkin v. Russia, no. 1555/04, §§
117 and 120-30, 10 June 2010, and found them to
have been incompatible with the requirements of Article 3 of the
Convention on account of severe overcrowding.
- The
Court next notes that the Government did not support their own
submissions in respect of the year 2000 with any data at all, whilst
their descriptions for the years 2001-2003 rely on incomplete data in
respect of some of the cells in which the second applicant was
detained on some of the dates. Moreover, the data submitted seems in
any event to confirm the second applicant’s version of events
in that the cells in question were severely overcrowded and the
actual number of inmates grossly exceeded their design capacity (see
paragraph 87 above). Lastly, a former detainee of that prison, S. K.,
in his uncontested statement relating to the period between 20
January 2003 and 20 June 2003 (see paragraph 90) also confirmed that
IZ-66/1 was severely overpopulated during his stay there.
- Overall,
the Court is prepared to accept the aforementioned indications as
sufficient confirmation of the second applicant’s point that
overcrowding of cells was a problem in that detention facility at the
time he was detained there.
- The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq.,
ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§
44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§§ 41 et seq., 2 June 2005; Mayzit v. Russia,
no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov
cited above, §§ 97; and Peers v. Greece, no.
28524/95, §§ 69 et seq., ECHR 2001-III).
- Having regard to its case-law on the subject and the
material submitted by the parties, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Although in the present case there is no indication that there was a
positive intention to humiliate or debase the applicant, the Court
finds that the fact that the second applicant had to spend two years,
eight months and fifteen days in overcrowded cells at IZ-66/1 in
Yekaterinburg 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 anguish and inferiority
capable of humiliating and debasing him.
- There has therefore been a violation of Article 3 of
the Convention as the Court finds the second
applicant’s detention to have been inhuman and degrading within
the meaning of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicants complained that they had not been represented by a lawyer
during the court proceedings resulting in their detention by the
decision of 17 October 2000 and had been unable to attend personally
the subsequent appeal hearing of 9 November 2000. The second
applicant also complained that he had not been able to attend the
appeal hearings of 9 February 2001, 1 July, 1 October, 13
November and 15 December 2002 and 8 January 2003. He was also
dissatisfied with the courts’ alleged failure to examine his
appeals against the detention order of 1 July 2002 and the decisions
dated 1 March and 4 September 2001, 1 April 2002 and 26 March
2003.
The
Court considers that the present complaints fall to be examined under
Article 5 § 4 of the Convention, which reads as follows:
“... 4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful. ...”
A. Submissions by the parties
- The
Government confirmed the applicants’ version of events
concerning the hearing of 17 October 2000, but disagreed that their
rights had been breached as a result of the absence of their counsel.
- The
applicants disagreed and maintained their complaints. They also
maintained that the alleged defects in the detention proceedings of
17 October 2000 had been aggravated by the fact that they had
not been able to attend the appeal hearing.
B. The Court’s assessment
1. Admissibility
- The
Court notes that the second applicant’s grievances about the
appeal hearings of 9 February 2001, 1 July, 1 October, 13 November
and 15 December 2002 and 8 January 2003, and the courts’
failure to examine his appeals against the detention order of 1 July
2001 and the decisions of 1 March, 4 September and 1 April 2002
and 26 March 2003 were lodged on 1 March 2006, that is more than
six months after the latest of the said detention hearings and the
second applicant’s release on 10 July 2003. It follows that
these complaints were introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
- The
Court also notes that the complaint about the absence of the lawyer
during detention hearing of 17 October 2000 and the lack of personal
presence during the subsequent appeal hearing of 9 November 2000, in
so far as it concerns the second applicant, has already been examined
and rejected as belated in its judgment Solovyev v. Russia,
no. 2708/02, §§ 120 and 123, 24 May 2007. It follows that
this part of the case is inadmissible and must be rejected in
accordance with Article 35 § 2 (b) of the Convention
- In
the light of the parties’ submissions, the Court finds that the
remaining grievance of the first applicant, about the first instance
hearing of 17 October 2000 and the appeal hearing of 9 November 2000,
raises serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. The
Court concludes that this complaint is not manifestly illfounded
within the meaning of Article 35 § 3 (a) of the
Convention. No other grounds for declaring it inadmissible have been
established.
2. Merits
(a) Principles established in the Court’s
case-law
- The Court observes that it has previously held that
there is no reason to distinguish between court decisions imposing
detention, extending it or testing its lawfulness. All such
proceedings should offer certain minimum procedural guarantees, and
the case-law concerning Article 5 § 4 of the Convention is, as a
rule, applicable to detention proceedings falling under Article 5 §
3 (see Lebedev v. Russia, no. 4493/04, § 76, 25 October
2007). The Court has also previously ruled that the proceedings
should be adversarial and ensure equality of arms (see, as a recent
authority, Mooren v. Germany [GC], no. 11364/03, § 124, 9
July 2009). Although it is not always necessary that the procedure
under Article 5 § 4 be attended by the same guarantees as those
required under Article 6 § 1 of the Convention for criminal or
civil litigation, it must have a judicial character and provide
guarantees appropriate to the kind of deprivation of liberty in
question (see Reinprecht v. Austria, no. 67175/01, § 31,
ECHR 2005-...). However, the requirement of procedural fairness under
Article 5 § 4 does not impose a uniform, unvarying standard to
be applied irrespective of the context, facts and circumstances (see
A. and Others v. the United Kingdom [GC], no. 3455/05, §
203, 19 February 2009).
- The Court has previously affirmed that the
possibility for a detainee to be heard either in person or through
some form of representation features among the fundamental guarantees
of procedure applied in matters of deprivation of liberty (see, among
other authorities, Kampanis v. Greece, 13 July 1995, §
47, Series A no. 318 B, and Allen v. the United Kingdom,
no. 18837/06, § 38, 30 March 2010). The Court has also
found that an oral hearing may be necessary in cases of detention on
remand (see A. and Others [GC], cited above, § 204,
referring to Nikolova v. Bulgaria [GC], no. 31195/96,
§ 58, ECHR 1999-II). In some cases the Court has stated
that where detention falls within the ambit of Article 5 § 1 (c)
of the Convention, as a general rule a detainee should have a right
to participate in person in a hearing where his detention is
discussed (see Lebedev, cited above, § 113, and
Sorokin v. Russia, no. 7739/06, § 80, 30 July
2009).
(b) Application of these principles
- Turning
to the present case, the Court notes that the first applicant’s
lawyer Ch. was absent from the court hearing of 17 October 2000, at
which the prosecutor sought to detain him pending trial, although the
first applicant was present (see paragraphs 13-16). The subsequent
appeal hearing of 9 November 2000 took place in the absence of the
first applicant, but was attended by his lawyer Ch, the prosecutor,
and the victim (see paragraphs 17-19 above). The Court must examine
whether in these circumstances the procedure under Article 5 § 4
was adversarial and respected the principle of equality of arms.
- The
Court observes that the issues discussed during the hearing of 17
October 2000 concerned the gravity of the charges against the
defendant and the risk that the defendant might interfere with the
conduct of the proceedings. That risk was formulated by the
prosecutor and the court in specific terms and its existence was both
inferred from the nature and gravity of the charges in general and
based on an assessment of the first applicant’s conduct during
the investigation and the trial (see paragraph 16 above). The hearing
therefore involved a discussion of the first applicant’s
personality and his current conduct. These questions had been raised
for the first time in the prosecutor’s application made on the
same day, and it is clear from the case file that the parties had
never addressed them previously (see, by contrast, Sorokin,
cited above, § 82). The first applicant had not had the benefit
of legal advice from either of his lawyers, R. or Ch., before the
discussion of these questions took place before the court in that
hearing, which certainly placed him in a vulnerable situation
vis-à-vis the prosecution during these proceedings.
- The
Court would underline that the hearing in question concerned the
proceedings imposing the detention. As the Court has already ruled
previously, such proceedings require special expedition and the judge
may well decide not to wait until a detainee avails himself of his
right to legal assistance (see Lebedev, cited above, §
84). What matters in the circumstances is not whether the first
applicant’s lawyer was present at the initial detention
hearing, but rather and more importantly whether the first applicant
had an opportunity to present his arguments properly in the
subsequent review proceedings.
- In
the latter connection, the Court would note that the review
proceedings took place in the presence of the prosecutor and the
victim, who both requested the appeal court to uphold the initial
detention order. The first applicant was not present because his
request to attend had been left unanswered. He was represented by his
lawyer Ch. (see paragraphs 17 19 above). Given the said
vulnerability of the first applicant at the initial hearing and the
lack of any explanation as to why he was not taken to the appeal
hearing in person even though the appeal court was ruling on legal
and factual issues, such as the assessment of his personality and his
conduct during the investigation and the trial, which called for the
first applicant’s personal presence, the Court cannot conclude
that the lawyer’s presence was in itself sufficient to ensure
that the proceedings were adversarial and the principle of equality
of arms was respected.
- Taking
the first set of detention proceedings as a whole, the Court
concludes that there has been a violation of Article 5 § 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Submissions by the parties
- The
Government considered that the complaint about the excessive length
of the proceedings was unmeritorious, because the applicants had
caused delays by changing their legal representation, appealing
against the trial court’s decisions and requesting various
procedural actions. At least fifteen hearings had been adjourned on
account of the absence of the applicants’ lawyers.
- The
applicants contested the Government’s submissions and
maintained their complaints.
B. The Court’s assessment
1. Admissibility
- The Court notes at the outset that it has already
examined the second applicant’s grievances about the excessive
length of the criminal proceedings in the Solovyev judgment
(cited above, §§ 140-50), and established that there was a
breach of Article 6 § 1 of the Convention on that account. The
Court finds that the complaints made by the second applicant in the
present application are substantially the same as those examined in
that judgment and contain no relevant new information. It follows
that this part of the case is inadmissible and must be rejected in
accordance with Article 35 § 2 (b) of the Convention.
- As
regards the complaint made by the first applicant, the Court observes
that the period to be taken into consideration began on 5 May 1998,
when the Convention entered into force in respect of Russia. However,
in assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at the time.
The period in question ended on 26 June 2003 when the
Ordzhonikidzevskiy District Court discontinued the criminal
proceedings against the first applicant in full. It thus lasted five
years and twenty-two days.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
and the conduct of the applicant and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court observes that the parties did not argue that the case was
complex. Having regard to the nature of the case against the first
applicant, the Court sees no reason to conclude otherwise.
- As to the first applicant’s conduct, the
Government argued that he had contributed to the length of the
proceedings by submitting various requests and appealing against the
District Court’s decisions. The Court is not convinced by this
argument. It has been the Court’s constant approach that an
applicant cannot be blamed for taking full advantage of the resources
afforded by national law in the defence of his interests (see Yağcı
and Sargın v. Turkey, 8 June 1995, § 66, Series A
no. 319 A).
- The
Court notes, however, the Government’s argument that a
substantial delay in the proceeding was caused by the failure of the
lawyers of both applicants to attend hearings. The aggregate delay
incurred as a result amounted to fourteen months at least (see
paragraphs 32, 37, 41, 44 and 68 above).
- As
regards the conduct of the authorities, the Court considers that the
overall period, less the period attributable to the first applicant,
leaves the authorities accountable for a period of approximately four
years. The Court is aware of substantial periods of inactivity
attributable to the domestic authorities for which the Government
have not submitted any satisfactory explanation. The Court notes that
on 1 February 1999 the District Court received the case for trial.
However, it took the presiding judge approximately one year and nine
months to schedule and to hold the first trial hearing (see paragraph
13 above). The Government did not cite any reasons for that delay.
Moreover, there were repeated delays in the proceedings between 28
November 2001 and 27 May 2002 (see paragraph 41 above), which
resulted in six more months of unjustified delay. The Court also
observes that on 27 May 2002 the District Court remitted the case for
further investigation to enable the prosecution to correct certain
defects. However, that decision was quashed on 21 August 2002
and the case was sent back to the District Court. This resulted in
further unjustified delay of almost three months, attributable to the
State (see paragraphs 48-51 above). Finally, from the case file it is
also clear there were delays in the proceedings unaccounted for by
the Government between 26 March 2003 and 25 June 2003 (see paragraphs
71 and 74 above).
- Having
examined all the material before it, and taking into account the
overall length of the proceedings and its earlier conclusions in
respect of the same set of criminal proceedings in the Solovyev
judgment (cited above, §§ 147-49), the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement. There
has accordingly been a violation of Article 6 § 1 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant’s complaint about the allegedly excessive
length of his detention on remand and his grievance about the trial
court’s decision to charge him for the services of a legal-aid
lawyer have been lodged out of time. The first applicant was released
on 7 June 2001, which was more than six months before he raised this
complaint in his letter of 14 June 2004. Likewise, the decision to
charge him for the services of a legal-aid lawyer was adopted on 27
May 2002, whilst the complaint about it was made almost four years
later, on 1 March 2006.
- The
applicants’ complaint about their inability to attend the
appeal hearing of 18 July 2001 is manifestly ill-founded. The hearing
concerned interlocutory matters (see paragraph 28) which had no
relevance for the fairness of the criminal proceedings under Article
6 of the Convention or the issue of the applicants’ detention
on remand under Article 5 § 4.
- In
so far as the first applicant complained about the alleged unfairness
of the criminal proceedings against him, the Court notes that he did
not appeal against the decision of 26 June 2003 discontinuing the
criminal proceedings against him (see paragraph 76). It follows that
the first applicant failed to exhaust domestic
remedies in his case, as required by
Article 35 § 1 of the Convention.
- As
regards the applicants’ complaints under Article 34 of the
Convention, the case file indicates that the
applicants were able to lodge their application forms together with
the authority forms without delay (see paragraph 91). The
Court is unable to conclude that there was any
hindrance with their right of individual petition as a result of the
alleged actions of the prison administration. Hence, the complaint
should be rejected.
- As
regards the second applicant’s complaints about the length of
his detention on remand and the alleged unfairness of the criminal
proceedings, the Court finds that they are substantially the same as
the ones examined in the Solovyev judgment (cited above, §§
109-19 and 151-52) and contain no relevant new information. It
follows that this part of the case is inadmissible and must be
rejected in accordance with Article 35 § 2 (b) 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
first applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage allegedly sustained as a result of the absence of his counsel
during the hearing of 17 October 2000. He asked for compensation of
EUR 12,500 in respect of non-pecuniary damage allegedly sustained as
a result of the protracted criminal proceedings in his case. He also
claimed EUR 89,000 for non-pecuniary damage sustained as a result of
other alleged violations of the Convention in his case, and 11,626
Roubles (RUB) for pecuniary damage. The second applicant claimed
EUR 30,000 in respect of non-pecuniary damage allegedly
sustained as a result of the appalling conditions of his detention
and EUR 5,000 for the absence of his counsel during the hearing of
17 October 2000. He asked for EUR 1,761,100 for non-pecuniary
damage sustained as a result of other alleged violations of the
Convention in his case and RUB 251,012 for pecuniary damage.
- The
Government disagreed with the applicants’ claims and considered
them unsubstantiated.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged by the applicants; it therefore
rejects these claims. On the other hand, it finds that the applicants
have suffered some non-pecuniary damage as a result of the violations
found which cannot be compensated by the mere finding of a violation.
Nevertheless, the amount claimed is excessive. Making its assessment
on an equitable basis, the Court awards the first applicant EUR 5,000
and the second applicant EUR 10,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on
these amounts.
B. Costs and expenses
- The second applicant also
claimed RUB 16,000 for costs and expenses incurred in the proceedings
before the Court.
- The Government contested the
claim.
- According to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and are reasonable as to quantum.
The Court notes that that the applicants were granted legal aid and
considers that that award covered reimbursement of the costs and
expenses incurred. Therefore, regard being had to the documents in
its possession and the above criteria, the Court rejects the second
applicant’s claims.
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
- Declares the second applicant’s complaint
about the conditions of his detention on remand in facility IZ-66/1,
the complaint of the first applicant about the lack of legal
assistance during the first detention hearing of 17 October 2000
and his inability to attend the appeal hearing concerning his
detention on remand on 9 November 2000, as well as the first
applicant’s complaint about the length of the criminal
proceedings, admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention in respect of the second applicant on account of
the conditions of his detention in facility IZ-66/1 from 18 October
2000 to 10 April 2003 and from 18 April to 10 July 2003;
- Holds that there has been a violation of Article
5 § 4 of the Convention in respect of the first applicant on
account of the procedural deficiencies during the detention hearings
of 17 October 2000 and 9 November 2000;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the first applicant on
account of the excessive length of the criminal proceedings against
him;
- Holds
(a) that
the respondent State is to pay the following amounts within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention:
(i) to
the first applicant EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage;
(ii) to
the second applicant EUR 10,000 (ten thousand euros) in respect of
non-pecuniary damage;
(iii) any
tax that may be chargeable on these amounts;
(b) that
the amounts shall be converted into Russian roubles at the rate
applicable on the date of settlement;
(c) 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 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
