In the case of Shcherbakov v. Russia (no. 2),
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 1 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
34959/07) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Igor Nikolayevich Shcherbakov
(“the applicant”), on 9 June 2007.
The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation
at the European Court of Human Rights.
The applicant alleged, in particular, that he had
been detained in appalling conditions and for an unreasonably long time pending
criminal proceedings against him; that an appeal he lodged against a detention
order of 1 November 2006 had been considered belatedly; that the criminal
proceedings against him had been unreasonably lengthy; and that he did not have
an effective remedy in respect of his complaints.
On 27 May 2010 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 applicant was born in 1955 and lives in Tula.
A. The applicant’s arrest and pre-trial detention
1. Detention pending investigation
On 16 November 2004 the
applicant was arrested on suspicion of extortion.
On 18 November 2004 the Proletarskiy
District Court of Tula authorised his pre-trial detention. The court noted as
follows:
“... in view of the nature of the charges against [the
applicant], the investigating authorities have compelling reasons to believe,
that [he] may, if released, abscond, continue to commit crimes, or intimidate
witnesses to impede the establishment of the truth ...
Having regard to the nature of the charges against [the
applicant], [the court] does not consider it possible to apply a less severe preventive
measure than detention.”
On 29 November 2004 the applicant was charged
with robbery.
On 14 January 2005 the Tsentralniy District
Court of Tula extended the applicant’s detention pending investigation until
13 April 2005. The court accepted the reasoning of the investigator, who
suggested that the applicant might, if released, continue to commit crimes, intimidate
witnesses to interfere with the administration of justice, or abscond. On
9 February 2005 the Tula Regional Court upheld the decision of
14 January 2005 on appeal.
On 12 April and 13 May 2005 the
District Court further extended the applicant’s detention until 16 May and
28 June 2005 respectively. On both occasions the court used the following
reasoning:
“... [the court] does not consider it feasible to release [the
applicant], given that he has committed several serious offences and may continue
to commit crimes, intimidate witnesses to interfere with the administration of
justice, or abscond.”
On 23 June and 21 July 2005 the
District Court extended the applicant’s detention until 28 July and
28 August 2005 respectively. In each of the detention orders the court
noted as follows:
“[The court] does not consider it feasible to release [the
applicant], given that he has committed several offences, some of which were
very serious, and may, if released, continue to commit crimes, intimidate
witnesses to interfere with the administration of justice, or abscond.”
On 5 August 2005 the Regional Court upheld
the decision of 23 June on appeal.
According to the Government, in 2004-2005 a
number of witnesses complained to the investigator that the applicant had
threatened them while at liberty. According to the applicant, it was the
investigator who encouraged the witnesses to complain. On an unspecified date
the witnesses confirmed the applicant’s allegations in court.
2. Detention pending trial
On 2 August 2005 the District Court
received the case file for the trial, which involved six defendants, including
the applicant.
On 24 August 2005 the District Court fixed
the trial date for 28 September 2005 and extended the detention of five of
the defendants until 28 February 2006. The court noted, in particular, as
follows:
“Having regard to the fact that Ch., [the applicant], M., K.,
and A. are charged with particularly serious offences ..., they may continue to
commit crimes, intimidate witnesses to interfere with the administration of
justice, or abscond. The court does not discern any reason why they should be
released.”
On 2 September 2005 the Regional Court
upheld the decision of 21 July 2005 on appeal.
On 28 September 2005 the Regional Court
considered an appeal lodged by the applicant against the court order of
24 August 2005 and upheld it in substance, changing the end date of the
applicant’s detention to 2 February 2006.
On 1 February 2006 the District Court
extended the applicant’s detention until 2 May 2006. The court referred to the
gravity of the charges against the applicant, noting that he might, if
released, continue to commit crimes and put pressure on witnesses. On
17 March 2006 the Regional Court upheld the decision of 1 February
2006 on appeal.
On 24 April 2006 the District Court
extended the applicant’s detention until 2 August 2006, reiterating
verbatim its reasoning of 1 February 2006. On 26 May 2006 the
Regional Court upheld the decision on appeal.
On 1 August 2006 the District Court
extended the detention of five of the defendants, including the applicant,
until 2 November 2006. The court stated as follows:
“Having heard the parties to the proceedings and having studied
the material in the case file, the court does not discern any reason why the
earlier imposed preventive measure in the form of custody should be lifted or
replaced.
[The defendants] are charged with serious and particularly serious
criminal offences ... The court has not received any information to suggest
that the defendants are unfit for detention on health grounds.”
On 1 September 2006 the Regional Court
upheld the decision of 1 August 2006 on appeal.
On 1 November 2006 the
District Court extended the detention of five of the defendants until
2 February 2007. The court reiterated that they had been charged with
particularly serious offences and might continue to commit crimes, intimidate witnesses
to interfere with the administration of justice, or abscond. On 9 November
2006 the applicant lodged an appeal against the decision of 1 November
2006.
On 13 December 2006 the
Regional Court upheld the decision of 1 November 2006 on appeal.
On 1 February 2007 the District Court extended
the detention of the applicant and three of his co-defendants until 2 May
2007. The court noted as follows:
“... the court concludes that ... the [defendants’] pre-trial
detention should be extended ... [They] are charged with particularly serious and
serious criminal offences. If released, the defendants may continue to commit
crimes or put pressure on witnesses and the victims.
The [defendants’] release from custody would seriously hamper
the examination of the case. The reasons justifying the remand of the
defendants in custody have not ceased to exist.”
On 26 April 2007 the District Court
extended the detention of the applicant and three of his co-defendants until
2 August 2007. The court stated as follows:
“... the court concludes that ... the [defendants’] pre-trial
detention should be extended ... [They] are charged with particularly serious and
serious criminal offences. A number of witnesses have not yet been questioned.
If released, the defendants may put pressure on witnesses and the victims.
The [defendants’] release from custody would seriously hamper
the examination of the case. The reasons justifying the remand of the
defendants in custody have not ceased to exist.”
On 16 May 2007 the Regional Court upheld
the decision of 1 February 2007 on appeal.
On 31 July 2007 the District Court extended
the detention of the applicant and three of his co-defendants until 2 November
2007. In particular, the court noted as follows:
“... the court concludes that ... the [defendants’] pre-trial
detention should be extended ... [They] are charged with particularly serious and
serious criminal offences. Prosecution witnesses B. and E. have not yet been
questioned. If released, the defendants may put pressure on witnesses; given
the character of each of the defendants, they may abscond, continue to commit
crimes, intimidate witnesses and other parties to the proceedings, or otherwise
interfere with the administration of justice. ... The [defendants’] release
from custody would seriously hamper the examination of the case. The reasons
justifying the remand of the defendants in custody have not ceased to exist.”
On 15 August 2007 the Regional Court upheld
the decision of 26 April 2007 on appeal.
On 30 October 2007 the District Court
extended the detention of the applicant and three of his co-defendants until
8 February 2008. The court reasoned as follows:
“... the court concludes that ... the [defendants’] pre-trial
detention should be extended ... [They] are charged with particularly serious and
serious criminal offences. Witness E., expert witnesses and lay witnesses who
participated in the investigation ... have not yet been questioned. If
released, the defendants may put pressure on witnesses; given the character of
each of the defendants, they may abscond, continue to commit crimes, intimidate
witnesses and other parties to the proceedings, or otherwise interfere with the
administration of justice. ... The [defendants’] release from custody would seriously
hamper the examination of the case. The reasons justifying the remand of the
defendants in custody have not ceased to exist.”
On 21 December 2007 the Regional Court
adjourned an appeal by the applicant against the detention order of
30 October 2007 to ensure his participation in the hearing. On
26 December 2007 the Regional Court upheld the decision of 31 July
2007 on appeal.
On 23 January 2008 the Regional Court
upheld the decision of 30 October 2007 on appeal.
On 31 January 2008 the District Court extended
the applicant’s pre-trial detention until 2 March 2008. The court referred
to the gravity of the charges against the applicant and the complexity of the
case. On 27 February 2008 the Regional Court upheld the decision of
31 January 2008 on appeal. The applicant was convicted by the District
Court on 28 February 2008 (see paragraph 36 below).
B. Criminal court proceedings
Following the applicant’s
arrest on 16 September 2004 and the preliminary investigation, on
2 August 2005 the criminal case file, comprising seventeen volumes of
documents, was received by the District Court for the trial.
The six defendants, including the applicant were
charged with numerous counts of fraud, robbery, threats
to kill, extortion and money laundering. The trial court was to question
fifty witnesses and to study substantial volumes of documentary evidence. The
court held one-hundred-and-twenty-five hearings.
The Government provided the following
information as regards adjournments of the trial hearings:
|
Date
|
Reason for adjournment
|
September and 31 October
2005
|
The applicant asked for additional
time to study the case file.
|
|
From 1 to 5 December 2005
|
The trial was stayed.
|
|
From 7 December 2005 to
30 January 2006
|
The trial was stayed.
|
January 2006
|
The applicant and his lawyer asked
for certain witnesses to be summoned for questioning.
|
February 2006
|
A number of defendants could not
attend the hearing on account of illness.
|
|
From 29 March to 24 April
2006
|
The trial was stayed.
|
|
From 17 to 24 May 2006
|
The trial was stayed.
|
May 2006
|
The judge was on sick leave.
|
June 2006
|
The defendants remanded in custody
were not transported to the courthouse.
|
July 2006
|
One of the defence counsel failed to
appear.
|
September 2006
|
The defendants remanded in custody
were not transported to the courthouse.
|
September 2006
|
One of the defence counsel failed to
appear.
|
October 2006
|
One of the defence counsel failed to
appear. According to the Government, witness F. failed to appear from that
day on in court until the appeal hearing.
|
|
From 11 to 25 October 2006
|
The trial was stayed.
|
-26 October 2006
|
One of the defence counsel failed to
appear.
|
and 27 March 2007
|
One of the defence counsel failed to
appear.
|
and 26 April 2007
|
One of the defence counsel failed to
appear.
|
, 13 and 14 June 2007
|
One of the defence counsel failed to
appear.
|
and 31 July 2007
|
One of the defence counsel failed to
appear.
|
August to 11 September
2007
|
The judge was on annual leave.
|
September 2007
|
One of the defence counsel failed to
appear.
|
On
28 February 2008 the District Court found the applicant guilty of extortion
and fraud, and sentenced him to three-and-a-half years’ imprisonment. The
applicant appealed, maintaining his innocence.
On 15 May 2008 the applicant was released
upon having served his sentence.
On 24 December 2008 the
Regional Court reclassified the applicant’s conviction without changing the
imposed sentence.
C. Conditions of detention
1. Temporary detention unit
From 16 to 18 November 2004 the applicant
was detained in a temporary detention unit at the regional police headquarters.
According to the Government, the applicant was held in a cell measuring 18.36 square
metres. The cell had four sleeping places, but the applicant was the only
occupant. A vent in the window permitted access to fresh air. There were two
windows in the cell covered with metal grills, which did not prevent access to
daylight. The toilet was located in the left corner of the cell, some 2.7 metres
away from the dining table and some 2.4 metres away from the nearest sleeping
place. It was separated from the living area of the cell by a 1.35-metre-high
wooden partition.
According to the applicant, there was no running
tap water in his cell. The lighting was insufficient, and he was not given the
opportunity to take any outdoor exercise.
2. Remand prison no. IZ-71/1 in Tula
(a) The description provided by the Government
The Government provided the following
information as regards the conditions of the applicant’s detention in remand
prison no. IZ-71/1 in Tula from 19 November 2004 to 15 May 2008:
|
Period
of detention
|
Cell
no.
|
Surface
area in square metres
|
Number
of beds
|
Number
of inmates
|
|
From 19 November 2004 to
18 March 2005
|
|
8
|
|
-6
|
|
From 18 March 2005 to
9 June 2007
|
|
|
|
-19
|
|
From 9 June to 2 July 2007
|
|
7
|
|
-4
|
|
From 2 July to 1 August
2007
|
|
|
|
-16
|
|
From 1 August 2007 to
15 May 2008
|
|
|
-14
|
-10
|
All the cells in the remand prison were equipped
with a ventilation system ensuring adequate fresh air circulation.
The windows in the cells were covered with metal
grills, which did not prevent access to daylight. The cells had electric lighting,
which was constantly switched on. From 10 p.m. to 6 a.m. the cells were
lit with 60-watt bulbs. This night lighting was used for surveillance purposes
and to facilitate the use of the toilet.
The toilet was located in the corner of each
cell, some 2.5 metres away from the nearest bed and some 3 metres away from the
dining table. It was separated from the living area of the cell by a 1.5-metre-high
wooden partition and a wooden door, which ensured sufficient privacy for the
person using it.
Inmates were allowed at least an hour’s daily
outdoor exercise in designated exercise areas measuring 30.8 square metres on
average. The exercise areas were covered with metal wire mesh, with openings
measuring 17 x 17 square centimetres.
The applicant was not confined to his cell all
the time. On numerous occasions he met with the investigator for questioning
and participation in other investigative activities. He had meetings with his
lawyers and visits from his family. According to copies of the relevant records
of the remand prison, none of the meetings or visits lasted any longer than two
hours. The Government’s submissions on the issue can be summarised as follows:
|
Year
|
Number of meetings
|
|
The applicant had four meetings with
his lawyer and one meeting with the investigator. He had two family visits.
|
|
On fifteen occasions the applicant
met with his lawyers. He had forty-eight meetings with the investigator and three
family visits.
|
|
The applicant had twelve meetings
with his lawyers and two meetings with the investigator. He had six family
visits.
|
|
The applicant had thirty-three meetings
with his lawyers. He met with the investigator twice.
|
|
The applicant met with his lawyers four
times. He met with the investigator twice and two family visits.
|
(b) The description provided by the applicant
According to the applicant, the number of inmates
detained in remand prison no. IZ-71/1 in Tula was much higher than the
number suggested by the Government. In particular, he submitted that in cell
no. 20 the number of inmates had been between six and seven, and in cell
no. 36 between sixteen and twenty-two people had been detained with him.
The lighting in the cells was constantly
switched on. There was one window in each cell, but it did not permit much access
to fresh air, as the ventilation system did not comply with the accepted
standards. Water was available from 6.30 a.m. to 9 a.m., from 12 noon to 3
p.m., and from 6 p.m. to 10 p.m. The toilet was separated from the living
area of the cells by a 1-metre-high partition, but it offered no privacy. The
cells were infested with insects. The administration took no measures to
exterminate them. The inmates were allowed a one-hour walk per day. The
exercise area did not have any sports equipment. The food was of a poor quality.
There were no refrigerators in the cells. On several occasions inmates suffering
from tuberculosis and AIDS were placed in the same cells as non-infected
inmates.
II. RELEVANT DOMESTIC LAW
A. Conditions of pre-trial
detention
. Section 22 of the Detention of Suspects Act
(Federal Law no. 103-FZ of 15 July 1995) provides that detainees should
be given free food sufficient to maintain them in good health according to
standards established by the Government of the Russian Federation. Under section 23,
detainees should be kept in conditions which satisfy sanitary and hygienic
requirements. They should be provided with an individual sleeping place and be given
bedding, tableware and toiletries. Each inmate should have no less than four
square metres of personal space in his or her cell.
B. Pre-trial detention
1. Grounds for ordering
detention on remand
. Article
97 of the Code of Criminal Procedure (CCrP) provides that an investigator or a
court may order a preventive measure, for instance detention pending
investigation or trial, if there were sufficient grounds to consider that the
defendant might abscond, continue his or her criminal activity or threaten a
witness or otherwise obstruct the proceedings. They must also take into account
the gravity of the charge, information on the defendant’s character, his or her
profession, age, health condition, family status and other circumstances
(Article 99 of the CCrP). Detention may be ordered by a court if the charge
carries a sentence of at least two years’ imprisonment, provided that a less
restrictive preventive measure cannot be applied (Article 108 § 1of the CCrP).
2. Review
of pre-trial detention
. An
appeal may be lodged with a higher court within three days against a judicial
decision ordering or extending detention (Article 108 § 10 of the CCrP). A
statement of appeal should be submitted to the court at first level of
jurisdiction (Article 355 § 1 of the CCrP). The CCrP contains no time-limit
during which the court at first level of jurisdiction should send the statement
of appeal and the case file to the appeal court. The appeal court must decide
the appeal within three days after its receipt (Article 108 § 10 of
the CCrP).
C. Remedies in respect of a violation of the right
to trial within a reasonable time
52. Federal Law
No. 68-ФЗ of 30 April 2010 (in force as of 4 May 2010)
provides that in the case of a violation of the right to a trial within a
reasonable time, the party concerned is entitled to seek compensation in
respect of non-pecuniary damage. Federal Law № 69-ФЗ (enacted
on the same date) introduced a number of corresponding changes to the Russian
legislation.
53. Section 6.2
of Federal Law No. 68-ФЗ provided that parties who had an application
pending before the European Court of Human Rights concerning a violation of their
right to a trial within a reasonable time, had six months from the date of
entry into force of the Law to lodge their claim for compensation with the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained that he had been
detained in appalling conditions pending the criminal proceedings against him
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 applicant also claimed that he did not have at his disposal
an effective remedy in respect of the conditions of his pre-trial detention. He
relied on Article 13 of the Convention, which, in so far as relevant, provides
as follows:
“Everyone whose rights and freedoms as
set forth in [the] Convention are violated shall have an effective remedy
before a national authority ...”
A. Admissibility
1. Compliance with the six months’ rule
Regard being had to the differences in the
material conditions of the applicant’s detention in the temporary detention
centre from 16 to 18 November 2004 and the remand prison from
19 November 2004 to 15 May 2008, which fact is not disputed by the
parties, the Court does not find that those two periods in question constituted
a “continuing situation” requiring a global assessment (see Pavlenko
v. Russia, no. 42371/02, § 73, 1 April 2010, and Maltabar
and Maltabar v. Russia, no. 6954/02, § 83, 29 January 2009).
The Court further notes that the complaint in respect of the applicant’s
detention in the temporary detention centre, which lasted from 16 to 18 November
2004, was lodged only on 9 June 2007, that is almost two-and-a-half years
after the end of the period complained of. The Court also takes into account
the applicant’s contention that he had not had an effective domestic remedy
against the alleged violation and the fact that he had not brought his
grievances to the attention of any domestic authority. In such circumstances, in
the Court’s view, it was incumbent on the applicant to raise the complaint
within the six months from the end-date of the period complained of. By having
failed to do so, he has not complied with the six months’ rule in respect of
his complaint about the conditions of detention in the temporary detention
centre from 16 to 18 November 2004 and it must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
The Court further notes that, by lodging the
complaint on 9 June 2007, the applicant has complied with the six months’
rule in respect of his grievances about the conditions of his detention in
remand prison no. IZ-71/1 in Tula from 19 November 2004 to
15 May 2008.
2. Exhaustion of domestic remedies
As regards the conditions of
the applicant’s detention in the remand prison from 19 November 2004 to
15 May 2008, the Government submitted that his complaint should be
dismissed for failure to exhaust effective domestic remedies. They asserted
that it had been open to the applicant to bring a civil action for damages or restitution.
They relied on the following examples of domestic case-law. On 19 July
2007 the Novgorod City Court of the Novgorod Region had awarded 45,000 Russian
roubles (RUB) to D. in respect of non-pecuniary damage on account of the
domestic authorities’ failure to ensure him with adequate conditions of
detention between 3 November 2004 and 5 July 2005. On 26 March
2007 the Tsentralniy District Court of Kaliningrad had granted R.’s claim for
compensation in respect of non-pecuniary damage on account of the prison
administration’s failure to provide him with adequate medical assistance. On
5 August 2009 the Astrakhan Regional Court had found credible A.’s
allegations concerning the conditions of his detention in a remand prison and
awarded him non-pecuniary damages in the amount of RUB 4,700.
The applicant claimed that he had not complained
about the conditions of his detention for fear of reprisal on the part of the
administration of the remand prison. It was also his view that any complaint he
might have made about overcrowding in the remand prison would have been to no
avail.
The Court considers that the issue of non-exhaustion
of domestic remedies is closely linked to the merits of the applicant’s complaint
that he did not have at his disposal an effective remedy in respect of his allegations
about the inhuman and degrading conditions of his detention. The Court
therefore finds it necessary to join the Government’s objection to the merits
of the complaint under Article 13 of the Convention.
3. Conclusion
. The
Court further notes that the complaints under Articles 3 and 13 of the
Convention, in so far as they concern the period from 19 November 2004 to
15 May 2008, are not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention and that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Article 13 of the Convention
(a) The parties’ submissions
The Government reiterated their argument put
forward in support of their assertion that the applicant had failed to exhaust
the effective domestic remedies concerning the complaint under Article 3
of the Convention (see paragraph 57 above).
The applicant maintained his complaint.
(b) The Court’s assessment
. In
the case of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§
93-119, 10 January 2012) the Court carried out a thorough analysis of domestic
remedies in the Russian legal system in respect of a complaint relating to the
material conditions of detention in a remand centre. The Court concluded in
that case that it was not shown that the Russian legal system offered an
effective remedy that could be used to prevent the alleged violation or its
continuation and provide the applicant with adequate and sufficient redress in
connection with a complaint of inadequate conditions of detention. Accordingly,
the Court dismissed the Government’s objection as to the non-exhaustion of
domestic remedies and found that the applicants did not have at their disposal an
effective domestic remedy for their grievances, in breach of Article 13 of the
Convention.
Having examined the Government’s arguments, the
Court finds no reason to depart from this conclusion in the present case.
Noting that the applicant raises an “arguable” complaint under Article 3 of the
Convention, the Court finds that there has been a violation of Article 13 of
the Convention.
2. Article 3 of the Convention
(a) The parties’ submissions
Relying on extracts from the remand prison population
register and certificates issued by its administration in August 2010, the
Government asserted that the conditions of the applicant’s detention in remand
prison no. IZ-71/1 in Tula had been compatible with the standards set
forth in Article 3 of the Convention. They admitted that the personal
space afforded him during the period in question had been below the statutory
minimum. Nevertheless, at all times the applicant had had his own individual
sleeping place. Inmates had not been confined to their cells. They had spent most
of their time out of their cells, for example when meeting with their lawyers
and receiving visits from their relatives, or when taking exercise outdoors or
participating in investigative activities.
The applicant submitted that for three and a
half years he had been detained in degrading and inhuman conditions which had
caused him mental and physical suffering.
(b) The Court’s assessment
. For
an overview of the general principles, see the Court’s judgment in the case of Ananyev
and Others (cited above, §§ 139-159).
Turning to the circumstances of the present
case, the Court observes that the parties disagreed as to most of the aspects
of the conditions of the applicant’s detention in remand prison
no. IZ-71/1 in Tula from 19 November 2004 to 15 May 2008.
However, there is no need for the Court to establish the veracity of each and
every allegation, because it can find a violation of Article 3 on the basis of
the facts presented to it by the applicant which the respondent Government did
not refute.
In this connection the Court takes into account
the Government’s admission that during the period in question in remand prison
no. 71/1 in Tula, the personal space afforded to each inmate was below the
statutory minimum of 4 square metres.
According to extracts from the remand prison population
register submitted by the Government, the applicant was afforded no more than 3 square
metres of personal space on average. Sometimes he had as little as 1.63 square
metres. As a result of such overcrowding, the applicant’s
conditions of detention did not meet the minimum standard as laid down in the
Court’s case-law (see, among many other authorities, Ananyev and
Others, cited above, §§ 143-49). This
fact alone is sufficient for the Court to find that the problem of overcrowding
had not been alleviated by the authorities in the present case. The Court does
not lose sight of the fact that on certain days, the number of inmates detained
with the applicant decreased and the personal space afforded to them exceeded 3
square metres. In the circumstances of the case, however, the Court does not consider
that such occasional fluctuations in the remand prison population significantly
affected the applicant’s situation as a whole.
Apart from an hour’s daily exercise, the
applicant was confined to his cell for the rest of the time. In the Court’s
view, his out of cell activity, namely occasional meetings with his lawyer, visits
from his family, or fifteen-minute weekly showers, did not significantly alter
the conditions of his detention.
. The
Court therefore concludes that the applicant was subjected to inhuman and
degrading treatment in breach of Article 3 of the Convention. In view of the Court’s
findings under Article 13 of the Convention, the Government’s argument concerning
the non-exhaustion of domestic remedies should be dismissed.
. In
the circumstances, the Court concludes that there has been a violation of
Article 3 of the Convention.
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 applicant’s detention in
remand prison no. 71/1 in Tula.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3
OF THE CONVENTION
The applicant complained that his pre-trial
detention had been unreasonably lengthy. He relied on Article 5 § 3 of
the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
The Government contested that argument. They
submitted that the applicant’s pre-trial detention had been in compliance with
Article 5 § 3 of the Convention. Firstly, the applicant had been
remanded in custody on reasonable suspicion of having committed a serious
criminal offence. Secondly, between 2004 and 2005 a number of witnesses had
complained to the investigator that the applicant had threatened them while at
liberty. Witness F. had disappeared before the court hearing of 4 October
2006 and his whereabouts had been unknown until the appeal hearing. In the
Government’s view, the domestic courts’ findings as regards the risk that the
applicant might abscond, put pressure on witnesses, or otherwise interfere with
the administration of justice had been fully substantiated. The applicant’s
pre-trial detention had been based on sufficient and relevant reasons.
The applicant maintained his complaint. He
claimed that the investigator had encouraged the witnesses to complain about
him, but their complaints had not been based on fact, which had been confirmed
by the witnesses themselves during their examination in court.
A. Admissibility
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.
B. Merits
(a) General principles
. The
Court reiterates that the question whether a period of time spent in pre-trial
detention is reasonable cannot be assessed in the abstract. Whether it is
reasonable for an accused to remain in detention must be assessed on the facts
of each case and according to its specific features. Continued detention can be
justified in a given case only if there are actual indications of a genuine
requirement of public interest which, notwithstanding the presumption of
innocence, outweighs the rule of respect for individual liberty laid down in
Article 5 of the Convention (see, among other authorities, Kudła v.
Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
. The
existence and persistence of a reasonable suspicion that the person arrested
has committed an offence is 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 continue to justify the deprivation of liberty. Where such
grounds are “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 and
153, ECHR 2000-IV). Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities (see Shishkov
v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts)). When
deciding whether a person should be released or detained, the authorities are
obliged to consider alternative measures of ensuring his appearance for trial
(see Jabłoński v. Poland, no. 33492/96, § 83, 21
December 2000).
The responsibility falls in the first place on the
national judicial authorities to ensure that, in a given case, the pre-trial
detention of an accused person does not exceed a reasonable time. To this end
they must, paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the public
interest which justifies a departure from the rule in Article 5, and must set
them out in their decisions on the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the established
facts stated 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 (see, for example, McKay
v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X).
(b) Application of these
principles to the present case
. The
applicant was arrested on 16 November 2004 and convicted by the trial
court on 28 February 2008 (see paragraphs 6, 33 and 36 above). Thus, the
period to be taken into consideration lasted approximately three years and
three-and-a-half months.
The Court accepts that the reasonable suspicion of
the applicant having committed the offences he had been charged with, being
based on cogent evidence, persisted throughout the trial leading to his
conviction. It remains to be established whether the courts gave “relevant” and
“sufficient” grounds to justify remanding the applicant in custody and whether
they displayed “special diligence” in their conduct of the proceedings.
The inordinate length of the applicant’s
pre-trial detention - three years and three-and-a-half months - is a matter of
concern for the Court. It considers that the Russian authorities were required
to put forward weighty reasons for keeping the applicant in pre-trial detention
for such a long time.
When extending the applicant’s pre-trial
detention, the domestic courts referred to the gravity of the charges against
him. In this connection they noted that he might abscond, continue to commit
crimes or intimidate witnesses.
. In
this connection the Court reiterates that, although the severity of the
sentence faced is a relevant element in the assessment of the risk of an
accused absconding or reoffending, the need to continue the deprivation of
liberty cannot be assessed from a purely abstract point of view, taking into
consideration only the seriousness of the offence. Nor can continuation of the
detention be used to anticipate a custodial sentence (see Letellier v. France,
26 June 1991, § 51, Series A no. 207; Panchenko v. Russia, no. 45100/98,
§ 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001).
As regards the existence of a risk of
absconding, the Court reiterates that such a risk cannot be gauged solely on
the basis of the severity of the sentence faced. It must be assessed with
reference to a number of other relevant factors, which may either confirm the
existence of a risk of absconding or make it appear so slight that it cannot
justify detention pending trial (see Panchenko, cited above, § 106, and Letellier,
cited above, § 43). In the present case the domestic courts gave no
reasons in their decisions why they considered the risk of his absconding to be
decisive. Accordingly, the Court finds that the existence of a risk that the
applicant might abscond was not established.
Similarly, the Court is not convinced that the
domestic courts’ findings that he put pressure on witnesses or otherwise interfered
with the administration of justice were sufficiently established. The Court
observes that, in extending the applicant’s detention, the domestic courts did
not refer to any complaints lodged by witnesses concerning threats made by the
applicant. As it follows from their decisions, at no time did the court refer
to any evidence as regards its conclusion that the applicant was likely to put
pressure on witnesses. In any event, it appears that the domestic courts had
sufficient time to take statements from the witnesses in a manner which could
have excluded any doubt as to their veracity, and that would have eliminated
the necessity to continue the applicant’s deprivation of liberty on that ground
(see, for similar reasoning, Solovyev v. Russia, no. 2708/02,
§ 115, 24 May 2007). The Court therefore considers that the domestic
courts were not entitled to regard the circumstances of the case as
justification for using the risk of putting pressure on witnesses as a further
ground for the applicant’s detention.
After the case had been sent for trial in August
2005, the court repeated the same standard formula to extend the detention of five
and then four of the defendants, including the applicant. The Court has already
found that the practice of issuing collective detention orders without a
case-by-case assessment of the grounds for detention 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
v. Russia, no. 75039/01, § 76, 8 June 2006; and Dolgova
v. Russia, no. 11886/05, § 49, 2 March 2006). By extending
the defendants’ detention by means of collective detention orders, the domestic
courts gave no real consideration to their individual circumstances.
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 court. 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 courts never considered the possibility of
ensuring the applicant’s attendance by the use of a more lenient preventive
measure.
Having regard to the above, the Court considers
that by relying essentially on the gravity of the charges, and by failing to
substantiate their findings by addressing specific facts or to consider
alternative “preventive measures”, the courts extended the applicant’s
detention on grounds which, although “relevant”, cannot be regarded as
sufficient to justify its duration of three years and three-and-a-half months.
In these circumstances it is not necessary for the Court to examine whether the
domestic courts acted with “special diligence”.
There has accordingly been a violation of
Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
The applicant complained that his appeal against
the detention order of 1 November 2006 had not been decided “speedily”, as
the respective hearing had not taken place until 13 December 2006. On 7 December
2010 he raised a similar complaint with the Court in respect of the detention
orders of 1 February, 26 April, 31 July and 30 October
2007. He relied on 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.”
The Government admitted that one of the judges
had failed to act on the applicant’s appeals against the detention orders upon
receipt, thereby causing an infringement of his right to a speedy review of his
pre-trial detention. In particular, on 23 January 2008 the Regional Court,
when reviewing the extension of the applicant’s pre-trial detention on appeal, had
expressly noted that judge L. had persistently delayed transferring the case file
to the appellate court for consideration. The judicial qualifications board
subsequently issued a warning to her for, inter alia, failing to comply
with procedural time-limits when dealing with the applicant’s pre-trial
detention.
The applicant maintained his complaint.
A. Admissibility
The
Court observes that the appeal hearings in respect of the detention orders of 1 February,
26 April, 31 July and 30 October 2007 were held on 16 May,
15 August and 26 December 2007 and 23 January 2008 respectively.
Accordingly, the part of the applicant’s complaint concerning those appeal
hearings should have been lodged no later than 23 July 2008. However, as it was lodged on 7 December 2010, it has been submitted
belatedly and must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
The Court further notes that his complaint in
respect of the review of the detention order of 1 November 2006 held on 13 December
2006 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
. The
Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to
detained persons a right to institute proceedings to challenge the lawfulness
of their detention, also proclaims their right, following the institution of
such proceedings, to a speedy judicial decision concerning the lawfulness of
detention and the ordering of its termination if it proves unlawful (see Baranowski
v. Poland, no. 28358/95, § 68, ECHR 2000-III). The question whether
the right to a speedy decision has been respected must be determined in the
light of the circumstances of each case (see Rehbock v. Slovenia,
no. 29462/95, § 84, ECHR 2000-XII).
The Court further considers that there is a
special need for a swift decision determining the lawfulness of a detention in cases where a trial is pending, as the
defendant should benefit fully from the principle of the presumption of
innocence (see Iłowiecki v. Poland, no. 27504/95, § 76,
4 October 2001).
Turning to the circumstances of the present
case, the Court observes that the applicant lodged an appeal against the
detention order of 1 November 2006 on 9 November 2006, whereas the appellate
court examined it on 13 December 2006 (see paragraphs 22-23 above). It
follows that it took the domestic courts thirty-four days to schedule and hold
the respective appeal hearing.
. In
the Court’s opinion, the issues before the appellate court were not complex.
Nor is there anything in the material before the Court to suggest that either
the applicant or his counsel contributed to the length of the appeal
proceedings. Moreover, the Government did not provide any justification for the
delays in the appeal proceedings. Accordingly, the entire length of the appeal
proceedings in the present case was attributable to the authorities. The Court further
reiterates that where an individual’s personal liberty is at stake, it has very
strict standards concerning the State’s compliance with the requirement of
speedy review of the lawfulness of detention (see Mooren v. Germany, no.
11364/03, § 74, 13 December 2007, and compare, for example, with Kadem
v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court
considered a time-period of seventeen days in deciding on the lawfulness of the
applicant’s detention to be excessive, and Mamedova v. Russia, no.
7064/05, § 96, 1 June 2006, where the
length of appeal proceedings lasting, inter alia, twenty-six days, was
found to be in breach of the “speediness” requirement of Article 5 § 4 of the
Convention).
Having regard to the above, the Court considers
that the appeal proceedings for the review of the lawfulness of the applicant’s
pre-trial detention cannot be considered compatible with the “speediness”
requirement of Article 5 § 4 of the Convention. There has therefore been a
violation of that provision.
IV. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant further complained under
Article 6 § 1 of the Convention that the criminal proceedings
against him had been unreasonably lengthy. Article 6 reads, in so far as
relevant, as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal
...”
. The
Government submitted that the criminal proceedings against the applicant had
been complex. The case had involved six defendants charged with several counts
of various offences, and the case file had comprised numerous volumes of
documentary evidence. The trial had been adjourned several times, on account of
the applicant’s requests to study the case file and the defence counsel’s failure
to appear at court.
The applicant maintained his complaint.
A. Admissibility
. 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.
B. Merits
The Court observes that the applicant was
arrested on 16 September 2004. It takes this date as the starting point
for assessing the length of the criminal proceedings against the applicant, and
the end date as being 24 December 2008, when the applicant’s conviction
was upheld on appeal (see paragraph 38 above). Accordingly, the period in
question in the present case comprised four years and three-and-a-half months, which
spanned the investigation stage and the court proceedings, when the case was
reviewed by courts at two levels of jurisdiction.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the applicant’s conduct and the conduct of the competent authorities
(see, among many other authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II).
The Court accepts the Government’s argument
that the proceedings against the applicant were complex. The investigation was
opened in respect of six defendants, including the applicant, who were charged
with several counts of fraud, robbery, threats to kill, extortion and money
laundering.
As regards the applicant’s conduct, the Court does
not discern anything in the material before it to suggest that the applicant seriously
contributed to the length of the proceedings. The fact that the trial was
adjourned from 28 September to 1 December 2005 on account of the
applicant’s request for additional time to study the case file did not have a
significant adverse effect on the overall duration of the trial.
As to the conduct of the authorities, the Court
is satisfied that they demonstrated sufficient diligence in handling the
proceedings. The investigation into the matter lasted for ten-and-a-half
months. The appeal proceedings lasted approximately ten months. The trial
hearings were held regularly. Admittedly, the trial at the first level of
jurisdiction lasted almost two years and seven months, but the court held
one-hundred-and-twenty-five hearings, and the Court discerns nothing in the
material before it to suggest that there were any unreasonable delays or
adjournments in the proceedings.
Making an overall assessment of the complexity
of the case, the conduct of the parties and the total length of the
proceedings, the Court considers that the latter did not go beyond what may be
considered reasonable in this particular case.
There has accordingly been no violation of
Article 6 § 1 of the Convention.
V. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION IN RESPECT OF THE COMPLAINT OF AN UNREASONABLE
LENGTH OF PROCEEDINGS
. The
applicant further complained that he did not have an effective remedy in
respect of the allegedly unreasonable length of the proceedings in his case. He
relied on Article 13 of the Convention.
The Government submitted that the applicant had
failed to bring his grievances to the attention of the domestic courts, asserting
that he could have done so using the applicable domestic legislation in force
since 4 May 2010.
The applicant maintained his complaint.
A. Admissibility
. 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.
B. Merits
. The
Court considers the complaint under Article 13 in respect of the length of the
proceedings arguable, even though it has not found a violation of the applicant’s
right to a trial within a reasonable time.
The Court takes cognisance of the existence of
a new remedy introduced by Federal Laws no. 68-ФЗ and no.
69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov
v. Russia (no. 2) (no. 33509/04, ECHR 2009).
These laws, which entered into force on 4 May 2010, introduced a new
remedy, which enables those concerned to seek compensation for damage sustained
as a result of unreasonably lengthy proceedings (see paragraph 52 above).
The Court accepts that from 4 May 2010 and until
4 November 2010 the applicant had a right to use this remedy (see paragraph 53 above), but he did not choose to pursue it.
The Court observes that, in the pilot judgment
cited above, it stated that it would be unfair to request applicants, whose
cases have already been pending for many years in the domestic system and who
have come to seek relief at the Court, to bring their claims again before
domestic tribunals (see Burdov (no. 2), cited above, § 144). In line
with that principle, the Court decided to examine the complaint about the
length of the proceedings on its merits and found no violation of the
substantive provision of the Convention.
However, an examination of the present case on
its merits should in no way be interpreted as prejudging the Court’s assessment
of the quality of the remedy introduced in 2010. It will examine this question
in other cases that are more suitable for such analysis. It does not see fit to
do so in the present case, particularly as the parties’ observations were made
in relation to a situation that had existed before its introduction.
Having regard to these special circumstances,
the Court does not consider it necessary to pursue a separate examination of
the complaint under Article 13 in the present case.
VI. OTHER ALLEGED VIOLATION OF THE CONVENTION
Lastly, the applicant complained under
Articles 6 and 13 of the Convention that the criminal proceedings
against him had been unfair. Referring to Article 14 of the Convention, he
alleged that he had been regarded as inferior on account of him being a
defendant in criminal proceedings.
Having regard to all the material in its
possession and in so far as these complaints fall within the Court’s
competence, it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols. It follows
that this part of the application must be rejected as manifestly ill-founded,
pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 1,400,000 euros (EUR) in
respect of nonpecuniary damage.
The Government argued that his claims were excessive
and unreasonable. They further submitted that the finding of a violation would
constitute sufficient just satisfaction in the circumstances of the case.
The Court accepts the Governments’ argument
that the applicant’s claims appear excessive. Nevertheless, it considers that
the non-pecuniary damage sustained by the applicant cannot be sufficiently
compensated for by the finding of a violation. Making its assessment on an equitable
basis, the Court awards the applicant EUR 16,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant did not submit any claims for
costs and expenses. Accordingly, the Court makes no 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. Joins to the merits the
Government’s objection as to the exhaustion of domestic remedies in respect of
the applicant’s complaint about the conditions of his detention in remand
prison no. IZ-71/1 in Tula from 19 November 2004 to 15 May 2008 and
rejects it;
2. Declares the complaints concerning the
applicant’s conditions of detention in remand prison no. IZ-71/1 in Tula
from 19 November 2004 to 15 May 2008 and the lack of effective remedy
in this respect, the length and the review of the applicant’s pre-trial
detention, the length of the criminal proceedings against him and the lack of
an effective remedy in this respect admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 13 of the Convention on account of the lack of effective remedy in
respect of the applicant’s complaint under Article 3 about the conditions
of his detention;
4. Holds that there has been a violation of
Article 3 of the Convention on account of the conditions of his detention in
remand prison no. IZ-71/1 in Tula from 19 November 2004 to
15 May 2008;
5. Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the length of the
applicant’s pre-trial detention;
6. Holds that there has been a violation of
Article 5 § 4 of the Convention on account of
the domestic court’s failure to examine speedily the applicant’s appeal against
the detention order of 1 November 2006;
7. Holds that there has been no violation of
Article 6 of the Convention on account of the length of the criminal
proceedings against the applicant;
8. Holds that there is no need to examine the
applicant’s complaint under Article 13 of the Convention on account of the
lack of effective remedy in respect of the complaint about the length of the
criminal proceedings against him;
9. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 16,000 (sixteen
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the
currency of the respondent state at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
10. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
