In the case of Grossman v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
46282/07) 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 Yuriy Gennadyevich Grossman (“the
applicant”), on 25 September 2007.
The applicant, who had been granted legal aid,
was represented by Mr P. Finogenov, a lawyer practising in Moscow. 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 pending trial, that he had not had an
effective remedy in that respect and that his pre-trial detention had been
unreasonably long.
On 27 August 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 1977 and is serving a
prison sentence in the Kemerovo Region.
A. Criminal proceedings against the applicant
1. Detention pending investigation
On an unspecified date the prosecution
authorities opened an investigation into the activities of an organised
criminal gang that had committed a series of murders and other crimes. The
applicant was one of the suspects.
On 1 August 2006 the Naberezhnyye Chelny
Town Court, Republic of Tatarstan, authorised a search of the applicant’s flat.
According to the applicant, he unsuccessfully complained about the court’s
search order to the town prosecutor on 20 March 2009.
On 19 August 2006 the applicant was arrested
and informed of the court order of 1 August 2006. His flat was searched on
the same day.
On 20 August 2006 the prosecutor’s office
appointed counsel N. to represent the applicant. On the same date the Town
Court authorised the applicant’s detention pending investigation. In
particular, the court noted as follows:
“[The applicant] is suspected of involvement in serious crimes
which present a heightened danger to public order and entail a custodial
sentence exceeding two years ...
The court considers that, if released, [the applicant], who
does not have a permanent place of residence in Naberezhnyye Chelny and who
knows where the witnesses reside, might abscond or otherwise interfere with the
establishment of the truth.”
On 12 October 2006 the Town Court extended
the applicant’s detention until 18 February 2007. The court refused to
release the applicant pending investigation, noting as follows:
“The investigator requests that the [applicant’s] detention be
extended. ... If released, [the applicant] might abscond, continue criminal
activities, put pressure on witnesses or otherwise interfere with the administration
of justice.
Having heard the defendant and his lawyer, who asked the court to
dismiss the request, and the prosecutor who considered that it should be
granted, and having studied the materials of the case, the court finds that the
investigator’s request is substantiated and should be granted.”
On 14 November 2006 the Supreme Court of the
Republic of Tatarstan upheld the decision of 12 October 2006 on appeal.
On 12 January 2007 counsel K. replaced counsel
N., who had asked to be withdrawn.
On 13 February 2007 the Town Court extended the
applicant’s detention until 27 April 2007. The court held as follows:
“... [the applicant] is charged with very serious offences
which present a heightened danger to public order and entail a custodial
sentence exceeding two years. This criminal case is of extreme complexity. The
reasons justifying the [applicant’s] remand in custody have not ceased to
exist. The time-limit for the preliminary investigation has been extended until
27 April 2007. A number of investigative activities involving [the applicant]
are pending. [The applicant] might abscond or commit new crimes [if released].”
On 20 March 2007 the Supreme Court of the
Republic of Tatarstan upheld the court order of 13 February 2007 on
appeal.
On 24 April 2007 the Town Court further extended
the applicant’s detention until 27 July 2007. The court reiterated verbatim the
reasoning of 13 February 2007.
On 17 July 2007 the Town Court extended the
applicant’s detention until 18 August 2007, noting as follows:
“[The applicant] is charged with a number of serious offences.
His involvement in the crimes he has been charged with is supported by the
materials submitted. The circumstances underlying the [applicant’s] remand in
custody have not ceased to exist.”
On 26 July 2007 the Supreme Court of the
Republic of Tatarstan extended the applicant’s detention until 27 October
2007, referring to the gravity of the charges against the applicant and the
risk that he might abscond or re-offend. On 4 October 2007 the Supreme
Court of Russia upheld the decision of 26 July 2007 on appeal.
2. Detention pending study of the case file
On 21 May 2007 the applicant started reading the
case file, which comprised twenty-five volumes and concerned twelve defendants.
On 15 October 2007 the Supreme Court of the Republic of Tatarstan held
that the applicant could not be released pending study of the case file, noting
that he might abscond, put pressure on the parties to the criminal proceedings
against him or re-offend, and extended the applicant’s detention until
27 January 2008. On 10 January 2008 the Supreme Court of Russia upheld the
decision of 15 October 2007 on appeal.
The applicant’s detention pending study of the
case file was further extended on 16 January 2008 until 19 February 2008.
Referring to the reasons indicated earlier to justify the applicant’s detention,
the court held that he could not be released. It appears that on an unspecified
date the decision of 16 January 2008 was quashed by the Supreme Court of Russia
on appeal. The matter was remitted for fresh consideration and on
24 January 2008 the Supreme Court of the Republic of Tatarstan extended
the applicant’s detention pending study of the case file until 27 April
2008. The applicant communicated with the court via video link.
On 9 February 2008 the applicant started studying
three additional volumes of the case. He was provided with a photocopying
machine and a digital camera. On 19 February 2008 the prosecutor’s office asked
the Town Court to set a time-limit for the applicant to study the case file.
The applicant asserted that he would need five additional days to complete the
study. The court granted him three additional days.
On 24 April 2008 the Supreme Court of Russia
quashed the decision of 24 January 2008 on appeal. The court noted that the
applicant should have been granted time to study the request lodged by the
investigator asking for an extension of the applicant’s detention. The court
further indicated that the applicant should remain in custody pending
consideration of the matter by the lower court. It appears that on 21 May 2008
the Supreme Court of the Republic of Tatarstan authorised the applicant’s
detention pending study of the case file until 19 February 2008. On
23 July 2008 the Supreme Court of Russia upheld the decision of 21 May
2008 on appeal.
3. Trial
On an unspecified date the prosecutor’s office
completed the investigation and forwarded the case file to the Supreme Court of
the Republic of Tatarstan. Counsel A. was appointed to represent the applicant.
On 24 April 2008 the Supreme Court fixed the preliminary hearing of the
matter and ordered that the applicant remain in custody pending trial. On
25 June 2008 the Supreme Court of Russia upheld the decision of
24 April 2008 on appeal, after having heard the applicant, his counsel and
the judge rapporteur.
On 2 June 2008 the Supreme Court of the Republic
of Tatarstan opened a jury trial against the applicant and eleven other
defendants.
On 25 September 2008 the jury delivered a guilty
verdict in respect of the applicant on charges of membership of a criminal
gang, illegal possessions of firearms, infliction of bodily injuries,
kidnapping and murder.
On 3 October 2008 the Supreme Court of the
Republic of Tatarstan authorised an extension of the applicant’s detention
until 10 January 2009 pending sentencing. On 25 November 2008 the
Supreme Court of Russia upheld the decision of 3 October 2008 on appeal.
On 15 October 2008 the Supreme Court of the
Republic of Tatarstan sentenced the applicant to sixteen years’ imprisonment.
On 18 June 2009 the Supreme Court of Russia
upheld the applicant’s conviction on appeal.
On 7 November 2012 the Presidium of the Supreme
Court of Russia quashed the appeal judgment of 18 June 2009 by way of a supervisory
review for the appeal court’s failure to ensure the presence of the applicant’s
lawyer at the appeal hearing and remitted the matter for a new appeal hearing.
The parties did not inform the Court of the outcome of the proceedings.
B. Conditions of pre-trial detention
Following his arrest on 19 August 2007, the
applicant was placed in detention in a remand prison. On numerous occasions between
2006 and 2009 the applicant was transferred to and detained in the Naberezhnyye
Chelny temporary detention unit in connection with the investigation and trial.
1. Description provided by the Government
According to the Government, the applicant was
detained at the temporary detention centre during the following periods:
- from 20
August to 6 September 2006;
- from 11
to 13 and from 18 to 27 October 2006;
- from 8
to 18 December 2006;
- from 10
to 19 January 2007;
- from 5
to 14 February 2007;
- from 28
February to 9 March 2007;
- from 14
to 19 March 2007;
- from 4
to 9 and from 20 to 25 April 2007;
- from 16
to 23 May 2007;
- from 30
May to 9 June 2007;
- from 29
June to 9 July 2007;
- from 11
to 18 and from 25 to 30 July 2007;
- from 1
to 10 August 2007;
- from 31
August to 10 September 2007;
- from 3
to 17 October 2007;
- from 2
to 12 and from 16 to 21 November 2007;
- from 12
December 2007 to 8 January 2008;
- from 11
to 18 January 2008;
- from 24
January to 1 February 2008;
- from 4
to 8 and from 11 to 27 February 2008;
- from 3
to 5 March 2008;
- from 4
to 9 and from 16 to 18 April 2008;
- from 15
to 24 June 2009;
- from 6 to
22 July 2009;
- from 22
to 29 December 2009.
The Government were unable to indicate the exact
numbers of the cells in which the applicant had been detained. Nor could they submit
information on the population of the temporary detention centre at the time of
the applicant’s detention. They provided the following overview of all the
cells in the temporary detention centre:
There were no individual beds in the cells. The
inmates had to share sleeping platforms. All the cells were equipped with a
functioning ventilation system. All the cells had two windows, except for cells
nos. 4 and 19, which had one window. Each window was covered with two
metal grilles which did not prevent access to daylight. The cells were lit
with 100-watt electric bulbs. The toilet in each cell was located at least
1.5 metres away from the dining table and the nearest sleeping place. It
was separated from the living area of the cell by a 1.2-metre high brick wall.
The cells were disinfected once every three
months. Inmates received three meals a day. The applicant did not have the opportunity
to take daily outdoor exercise. He spent a certain amount of time outside the
cell participating in investigative activities, taking showers, visiting doctors and
meeting with his lawyer. He consulted a medical practitioner thirty-three times.
In June 2008 the temporary detention centre was
completely refurbished. The electrical wiring and other equipment, toilets,
water supply, ventilation and sewerage systems were replaced. The sleeping
platforms were replaced with individual beds. The brick walls separating the
toilets from the living areas of the cells were removed and new metal cabins
were installed. New window frames were also installed.
2. Description provided by the applicant
According to the applicant, he was always detained
in overcrowded cells. In particular, at least twelve inmates were detained in
cells nos. 1, 12, 16 and 22, and at least nine were detained in cells
nos. 2, 3 and 13.
There was no ventilation or access to daylight.
The electric lighting was constantly on. Each cell was lit with a 60-watt
electric bulb.
The distance between the toilet and the nearest
sleeping places was between 0.2 and 0.5 metres. The wall separating the toilet
from the living area of the cell was 0.5-metres high and offered no privacy to
the person using the toilet.
The applicant was never taken out of the cell to
participate in investigative activities. Meals were provided once a day. The
food rations were insufficient; no meat, fish, fruit or vegetables were served.
The applicant was not given bed sheets.
3. The authorities’ response to the applicant’s
complaints about the conditions of his detention
On 21 February 2007 the
deputy town prosecutor dismissed the applicant’s complaint about the conditions
of his detention in the temporary detention centre, noting as follows:
“In the course of the inquiry [the head of the temporary
detention centre] submitted that, in order to bring the premises of the
temporary detention centre into compliance with the federal legislation, it
should be subjected to reconstruction and refurbishment. The maximum capacity
is 110 persons. However, following the amendments to the Code of Criminal
Procedure of the Russian Federation requiring that suspects and defendants be
present at court hearings, the average daily population has drastically increased
to 140 persons. ... Every day the police book in 4-5 new inmates. Accordingly
it is impossible to provide every detainee with an individual sleeping place.
Furthermore, on 13 February 2007 ... 42 newly arrived inmates were booked
in. As a result, the population of the temporary detention centre rose to
171 persons. There were eight inmates detained in cell no. 3 ... .
This number does not exceed the capacity of the cell.”
On 27 March 2007 the Ministry of the
Interior of the Republic of Tatarstan replied to a complaint lodged by the
applicant about the conditions of his detention in the temporary detention
centre. In particular, the letter read as follows:
“... the complaints about the conditions of detention
communicated by [the applicant] at the hearing of the [Town Court] on
7 February 2007 should be considered substantiated in part. However, the
allegation that there was an intent on the part of [the head of the temporary
detention centre] to deliberately create such conditions of detention has not
been substantiated.
I would also inform you that in 2008 it is planned to allocate
monetary funds for capital refurbishment and reconstruction of the temporary
detention centre that would bring the conditions of detention in the temporary
detention centre into compliance with the applicable legislation of the Russian
Federation.”
On 10 July 2007 the applicant and six other
inmates detained in cell no. 2 of the temporary detention centre
complained to the town prosecutor about overcrowding in the cell where they
were detained. The applicant did not inform the Court of the prosecutor’s
response to the complaint, if any.
II. RELEVANT DOMESTIC LAW
The Federal Law on
Detention of Suspects and Defendants charged with Criminal Offences (“the
Detention of Suspects Act”) (as amended), in force since 21 June 1995, provides
that suspects and defendants detained pending investigation and trial are held
in remand prisons (section 8). They may be transferred to temporary detention
facilities if so required for the purposes of investigation or trial and if
transportation between a remand prison and a police station or court-house is
not feasible because of the distance between them. Such detention in a
temporary detention facility may not exceed ten days a month (section 13).
Temporary detention facilities in police stations are designated for the
detention of persons arrested on suspicion of a criminal offence (section 9).
Under paragraph 3.3
of the Internal Regulations for Temporary Detention Facilities, approved by
Order No. 41 of the Ministry of the Interior of the Russian Federation on 26
January 1996, as amended (in force at the time of the applicant’s detention),
the living space per detainee should be 4 square metres. Paragraph 3.2 made
provision for cells in temporary detention facilities to be equipped with a
table, a toilet, running water, a shelf for toiletries, a drinking water tank,
a radio and a rubbish bin. Furthermore, paragraphs 6.1, 6.40, and 6.43 of the regulations
made provision for detainees to have outdoor exercise for at least one hour a
day in a designated exercise area.
III. RELEVANT INTERNATIONAL
DOCUMENTS
The
relevant extract from the 2nd General Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
(CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is
in principle of relatively short duration ... However, certain elementary
material requirements should be met.
All police cells should be of a
reasonable size for the number of persons they are used to accommodate, and
have adequate lighting (i.e. sufficient to read by, sleeping periods excluded)
and ventilation; preferably, cells should enjoy natural light. Further, cells
should be equipped with a means of rest (e.g. a fixed chair or bench), and
persons obliged to stay overnight in custody should be provided with a clean
mattress and blankets.
Persons in custody should be allowed to
comply with the needs of nature when necessary, in clean and decent conditions,
and be offered adequate washing facilities. They should be given food at
appropriate times, including at least one full meal (i.e. something more
substantial than a sandwich) every day.
43. The issue of what
is a reasonable size for a police cell (or any other type of detainee/prisoner
accommodation) is a difficult question. Many factors have to be taken into account
when making such an assessment. However, CPT delegations felt the need for a
rough guideline in this area. The following criterion (seen as a desirable
level rather than a minimum standard) is currently being used when assessing
police cells intended for single occupancy for stays in excess of a few hours:
in the order of 7 square metres, 2 metres or more between walls, 2.5
metres between floor and ceiling.”
The CPT reiterated the above conclusions
in its 12th General Report (CPT/Inf (2002) 15, § 47).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained, under Articles 3, 6
and 13, of the appalling conditions of his detention in the Naberezhnyye Chelny
temporary detention unit during multiple periods between 20 August 2006
and 29 December 2009. The Court will examine the complaint under Articles 3
and 13 of the Convention, which read as follows:
Article
3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article
13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government noted that the applicant had
failed to bring his grievances to the attention of the Russian courts and
considered that his complaint should be rejected for failure to comply with the
requirements of Article 35 § 1 of the Convention. In support of their argument,
they cited the following examples from domestic practice. On 19 July the
Novgorod City Court, Novgorod Region, awarded 45,000 roubles (RUB) to D. in
respect of non-pecuniary damage resulting from the domestic authorities’
failure to ensure proper conditions during his pre-trial detention. On
17 December 2008 the Sovetskiy District Court of Nizhniy Novgorod granted
G.’s claims concerning his detention in an overcrowded cell and awarded him
RUB 2,000. On 14 October 2009 the Sovetskiy District Court of Nizhniy
Novgorod granted B.’s claims concerning the conditions of his pre-trial
detention in view of the lack of sufficient personal space, lighting,
ventilation, fresh air and medical assistance, and awarded him
RUB 100,000. On 26 March 2007 the Tsentralniy District Court of
Kaliningrad found that the correctional colonies where R. had been serving a
prison sentence had failed to provide him with adequate medical assistance and
awarded him RUB 300,000. On 26 September 2008 the Berezniki Town Court of
the Perm Region awarded Ye. RUB 65,000 in respect of non-pecuniary damage
resulting from his detention in the temporary detention centre.
The applicant submitted that he had lodged
numerous complaints about the conditions of his detention with the domestic
authorities. All of them had been to no avail.
A. Admissibility
. The Court observes that the applicant was
detained in the Naberezhnyye Chelny temporary detention centre during multiple
periods between 20 August 2006 and 29 December 2009. At the end of each period
he was transferred to another detention facility pending the criminal
proceedings against him. Those regular interruptions in the applicant’s
detention in the temporary detention centre do not prevent the Court from
treating such detention as a “continuing situation”. In the Court’s opinion, it
would be excessively formalistic, in the circumstances of the case, to insist
that the applicant lodge a new complaint after the end of each of the multiple
periods of his detention at the same detention facility (see, mutatis
mutandis, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012).
. As regards the Government’s objection as to the
non-exhaustion of domestic remedies, the Court reiterates that in the case of Ananyev (Ananyev,
cited above, §§
93-119) 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 pre-trial detention. The Court concluded in that case that it had
not been 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 complaints, in breach of Article 13 of the
Convention.
The Court further observes that that in a number of earlier cases against Russia (see, for
example, Khristoforov v. Russia, no. 11336/06, §§ 18-19, 29 April 2010) it dismissed the Government’s objection
as to the alleged non-exhaustion of domestic remedies by the applicant for
their failure to demonstrate the practical effectiveness of the applicant’s
recourse to the domestic authorities in respect of his complaints about the
conditions of his detention in a temporary detention centre.
51. Having examined the
Government’s arguments, the Court finds no reason to depart from that
conclusion in the present case. Accordingly, the Court rejects the Government’s
argument as to the exhaustion of domestic remedies.
52. In
the light of the Court’s above finding that the Russian legal system offers no
effective remedy providing adequate redress, the Court considers that the six
months’ period should start running from the end of the situation complained
of. Accordingly, the Court concludes that, by introducing the complaint
on 25 September 2007, the applicant complied with the six-month criterion.
. The
Court notes that the complaints under Articles 3 and 13 of the Convention 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 3 of the Convention
(a) The parties’ submissions
The Government considered that the conditions of
the applicant’s detention in the Naberezhnyye Chelny temporary detention
centre, overall, had been compatible with national and Convention standards.
The applicant maintained his complaint. He also
submitted statements made by K., Kh. and Yu., who had been detained in the same
detention centre in 2006, 2008 and 2008-10 respectively. All of them confirmed
the applicant’s allegations concerning the conditions in the temporary
detention centre.
(b) The Court’s assessment
. Article
3 of the Convention, as the Court has observed on many occasions, enshrines one
of the fundamental values of a democratic society. The Convention prohibits in
absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the circumstances or the victim’s behaviour (see Balogh v. Hungary,
no. 47940/99, § 44, 20 July 2004, and Labita
v. Italy [GC], no. 26772/95, § 119, ECHR
2000-IV). The Court has consistently stressed that, for a violation to be found,
the suffering and humiliation involved must go beyond that inevitable element
of suffering or humiliation connected with a given form of legitimate treatment
or punishment. Measures depriving a person of his liberty may often involve
such an element. In accordance with Article 3 of the Convention, the State must
ensure that a person is detained under conditions which are compatible with
respect for his human dignity and that the manner and method of the execution
of the measure do not subject him to distress or hardship exceeding the
unavoidable level of suffering inherent in detention (see Kudła
v. Poland [GC], no. 30210/96, § ..., ECHR 2000-XI §§ 92-94).
. Turning
to the circumstances of the present case, the Court observes that the parties
disagreed as to certain aspects of the conditions of the applicant’s detention.
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 information contained in the
official documents addressed to the applicant in response to his complaints
about the conditions of his detention. The Russian competent authorities
expressly admitted that the temporary detention centre in Naberezhnyye Chelny
had been overcrowded. The number of detainees had exceeded its maximum capacity.
The designed capacity of the centre was 110 inmates, whereas its average daily
population was as high as 140, and at times more than 170 inmates were detained
there simultaneously (see paragraph 39 above).
. The
Court further notes that it has already examined the situation concerning the
conditions of detention in the Naberezhnyye Chelny temporary detention centre
during the period between 31 January 2005 and 1 October 2007 and found it
incompatible with the requirements of Article 3 of the Convention (see Gorovoy
v. Russia, no. 54655/07, §§ 47-51, 27 June 2013).
. Having
regard to the above, coupled with the fact that the Government did not submit
any relevant information, the Court accepts as credible the applicant’s
allegations concerning the overcrowding of the temporary detention centre,
which was corroborated by the statements of other inmates detained there. As a
result of such overcrowding, the applicant’s detention did not meet the minimum
requirement as laid down in the Court’s case-law, of 3 square metres per person
(see, among many other authorities, Ananyev, cited above, § 148; Trepashkin
v. Russia (no. 2), no. 14248/05, § 113,
16 December 2010; Kozhokar v. Russia, no. 33099/08, § 96, 16 December 2010; and Svetlana Kazmina v. Russia,
no. 8609/04, § 70, 2 December 2010). The Court notes that the
applicant was held at the temporary detention centre for 260 days. Although he
was not permanently confined to his cell and spent some time outside the cell
when meeting his lawyer or consulting a doctor, the Court nevertheless
considers that such brief periods did not have an alleviating effect on the
applicant’s situation.
. In
the Court’s opinion, such conditions of detention must have caused him
considerable mental and physical suffering, diminishing his human dignity,
which amounted to inhuman and degrading treatment within the meaning of Article
3 of the Convention.
. The
Court takes into account the Government’s argument that in the present case
there was no positive intention to humiliate or debase the applicant. However,
the absence of any such intention cannot exclude the finding of a violation of
Article 3 of the Convention. Even if there had been no fault on the part of the
administration of the temporary detention facility, it should be emphasised
that Governments are answerable under the Convention for the acts of any State
agency, since what is at issue in all cases before the Court is the
international responsibility of the State (see, among other authorities, Novoselov v. Russia,
no. 66460/01, § 45, 2 June 2005).
. The
Court therefore considers that the applicant was subjected to inhuman and
degrading treatment in breach of Article 3 of the Convention on account of the
conditions of his detention in the Naberezhnyye Chelny temporary detention
centre during multiple periods, totalling 260 days, between 20 August
2006 and 29 December 2009.
2. Article 13 of the Convention
64. The Court takes
note of its earlier findings (see paragraphs 48-52 above), and concludes that there has been a violation of
Article 13 of the Convention on account of the lack of an effective remedy
under domestic law enabling the applicant to complain about the conditions of
his pre-trial detention in the temporary detention centre.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
The applicant complained under Article 5 of
the Convention that his pre-trial detention had not been based on sufficient
and relevant reasons. The Court will examine the applicant’s grievances under
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.”
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
1. The parties’ submissions
The Government asserted that the length of the
applicant’s pre-trial detention had been justified. There
had been specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, had outweighed the rule of
respect for individual liberty. In particular, the applicant had been a
member of an organised criminal gang and had been charged with serious crimes.
He had not had a permanent place of residence and could have threatened the
parties to the criminal proceedings against him, continued his criminal
activities or interfered with the administration of justice. Furthermore, the
domestic judicial authorities had taken into account that the applicant had
absconded in 1997; he had been in hiding for two years before his arrest in
1999. In the Government’s view, the applicant’s pre-trial detention had been
compatible with the standards set forth in Article 5 § 3 of the
Convention. In particular, when considering the issue of the applicant’s
pre-trial detention, the national courts had examined the possibility of using alternative
preventive measures to ensure that the applicant attended trial.
The applicant maintained his complaint. He
considered that the national authorities had failed to substantiate their
reasoning when extending his pre-trial detention. None of their arguments, such
as the risk of his absconding or interfering with the administration of
justice, or his lack of a permanent place of residence, had had any evidentiary
basis. In particular, at no time had the domestic courts mentioned the fact
that the applicant had allegedly absconded in 1997-99. Lastly, he argued that
the national authorities had failed to demonstrate “special diligence” when
bringing his case to trial.
2. The Court’s assessment
(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, cited above, §§ 110 et seq.).
. The
existence and persistence of a reasonable suspicion that the person arrested
has committed an offence is a sine qua non for the lawfulness of the continued detention. However, after
a certain lapse of time it no longer suffices. In such cases, the Court must
establish whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds 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,
cited above, §§ 152 and 153). 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 at trial (see Jabłonski 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 length. To this end they must examine all the arguments
for and against the existence of a public interest which justifies a departure
from the rule in Article 5, paying due regard to the principle of the
presumption of innocence, and must set them out in their decisions on
applications for release. It is essentially on the basis of the reasons given
in those 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 the
principles to the present case
. The
applicant was remanded in custody on 20 August 2006. He was convicted by
the trial court on 15 October 2008. Thus, the
period to be taken into consideration lasted approximately two years and two
months.
. The
Court accepts that the reasonable suspicion that the applicant had 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 ascertained whether the judicial authorities gave “relevant” and
“sufficient” grounds to justify the applicant’s placement in detention and
whether they displayed “special diligence” in the conduct of the proceedings.
. When
extending the applicant’s pre-trial detention, the domestic authorities
referred to the gravity of the charges against him. In this respect they noted
that he might interfere with the administration of justice, put pressure on the
witnesses or other parties to the proceedings, or destroy evidence. They also
cited the risk that he would abscond or continue with criminal activities, in
view of his prior criminal record.
. 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).
. The
Court accepts that in cases concerning organised crime and involving numerous accused, the risk that a detainee,
if released, might put pressure on
witnesses or otherwise obstruct the proceedings is often particularly high. All
those factors can justify a relatively long period of detention. However, they
do not give the authorities unlimited power to extend this preventive measure
(see Osuch v. Poland, no. 31246/02, § 26, 14 November 2006, and Celejewski v. Poland, no.
17584/04, §§ 37-38, 4 May 2006). The fact that a person is charged
with criminal conspiracy is not in itself sufficient to justify long periods of
detention; his personal circumstances and behaviour must always be taken into
account. There is no indication in the present case that the domestic courts in
any way checked whether the applicant had indeed attempted to intimidate
witnesses or to obstruct the course of justice in any other way. In such
circumstances the Court has difficulty accepting the argument that there was a
risk of interference with the administration of justice. Furthermore, such a
risk was bound to decrease gradually as the trial proceeded and the witnesses
were interviewed (compare Miszkurka v. Poland, no. 39437/03, § 51, 4 May 2006). The Court is not
therefore persuaded that, throughout the entire period of the applicant’s
detention, compelling reasons existed for fearing that he might interfere with
witnesses or otherwise hamper the examination of the case, and certainly not
such as to outweigh the applicant’s right to trial within a reasonable time or
release pending trial.
As regards the
existence of a risk that the applicant might abscond, the Court reiterates that
such a danger 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 danger 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
authorities gave no reasons why they considered the risk of the applicant absconding
to be decisive. The Government submitted that the applicant had absconded from
the investigating authorities in 1997 and had subsequently been in hiding for
two years. However, it is not the Court’s task to take the place of the
national authorities who ruled on the applicant’s detention and to substitute
its own analysis of the facts, arguing for or against detention (see Nikolov v. Bulgaria, no. 38884/97, § 74, 30
January 2003, and Labita, cited above, § 152). That circumstance was referred to
for the first time in the proceedings before the Court; the domestic courts did
not mention it in their decisions. 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 authorities’ finding that the applicant might continue his criminal
activities was sufficiently established. The Court does not discern any
evidence in the materials submitted by the Government to substantiate that allegation.
Lastly, the Court observes that all the court
orders extending the applicant’s detention issued within the period under
consideration were stereotypically worded in the same summary form.
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 with pertinent specific facts or to consider
alternative preventive measures, the authorities extended the applicant’s
detention on grounds which, although “relevant”, cannot be regarded as
sufficient to justify its duration of two years and two months. Even though the
reasons for the applicant’s pre-trial detention might have existed, the
authorities have failed to convincingly demonstrate them. In these
circumstances, it will not be necessary for the Court to examine whether the
domestic authorities acted with “special diligence”.
There has accordingly been a violation of
Article 5 § 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under
Article 8 of the Convention about the search of his flat on 19 August
2006. He complained under Article 5 of the Convention that several
extensions of his pre-trial detention had been unlawful and that the domestic
judicial authorities had failed to ensure his effective participation in a
number of detention hearings. Relying on Article 6 of the Convention, the
applicant alleged that he had been unable to prepare for the trial and that the
defence provided by State-appointed counsel had not been effective. He also relied
on Article 13 of the Convention.
Having regard to all the
material in its possession and in so far as these complaints fall within its
competence, the Court 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.
IV. 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 50,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
excessive. They further submitted that, given that the applicant’s rights under
the Convention had not been infringed, his claim in respect of damage should be
rejected in full. Alternatively, they proposed that the finding of a violation
would constitute sufficient just satisfaction.
The Court observes that the applicant was
detained in appalling conditions in contravention of Article 3 of the
Convention. The length of his pre-trial detention, which lasted approximately
two years and two months, was not justified. The Court considers that the
applicant’s suffering and frustration cannot be compensated for by the mere
finding of a violation. However, the Court accepts the
Government’s argument that the specific amount claimed appears excessive. Making
its assessment on an equitable basis, it awards the applicant EUR 5,000,
plus any tax that may be chargeable, 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
1. Declares
unanimously the complaints concerning the conditions of the applicant’s
detention in the Naberezhnyye Chelny temporary detention centre, the lack of an
effective remedy in this respect and the length of his pre-trial detention
admissible and the remainder of the application inadmissible;
2. Holds unanimously
that there has been a violation of Article 3 of the Convention;
3. Holds unanimously
that there has been a violation of Article 13 of the Convention;
4. Holds by five votes to two that there has been a violation of Article 5 § 3 of the Convention;
5. Holds unanimously
(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 5,000 (five 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;
6. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate joint opinion of Judges Isabelle Berro-Lefèvre
and Dmitry Dedov is annexed to this judgment.
I.B.L.
S.N.
JOINT DISSENTING OPINION
OF JUDGES BERRO-LEFEVRE AND DEDOV
We regret that we cannot share the view
of the majority of the Chamber who found a violation of Article 5 § 3 of
the Convention.
We observe that the present case concerned
serious crimes, namely membership of a criminal gang, illegal possession of
firearms, infliction of bodily injuries, kidnapping and murder. It was a
classic example of organised crime, by definition presenting more difficulties
for the investigating authorities and, later, for the courts in determining the
circumstances of the matter. It is obvious that in cases of this kind
continuous control and limitation of the defendants’ contact with each other
and with other persons may be essential to prevent their absconding, tampering
with evidence and most importantly of all influencing, or even threatening,
witnesses. All those factors can justify a relatively long period of detention,
which in this case lasted approximately two years and two months.
Therefore, the fact that the case concerned a
member of such a criminal group should be taken into account in assessing
compliance with Article 5 § 3 (see, for example, Bak v.
Poland, no. 7870/04, § 57, 16 January 2007). Accordingly,
longer periods of detention than in other cases may be reasonable (compare Rażniak
v. Poland, no. 6767/03, § 25, 7 October 2008).
In our view, the reasonable suspicion that the applicant had
committed the offences he had been charged with, being based on cogent
evidence, persisted throughout the trial leading to his conviction. And we
consider that the judicial authorities gave “relevant” and “sufficient” grounds
to justify the applicant’s detention and displayed “special diligence” in the
conduct of the proceedings.
When extending the applicant’s pre-trial detention, the
domestic authorities did not automatically refer to the gravity of the charges
against him. They noted that he might interfere with the administration of
justice, put pressure on the witnesses or other parties to the proceedings or
destroy evidence, as such actions remained vital for the criminal group
throughout the whole period of the investigation proceedings. They also cited
the risk that he would abscond or continue with criminal activities, in view of
his prior criminal record.
It is clear from the case materials that the authorities were
faced with the difficult task of determining the facts and the degree of
alleged responsibility of each of the twelve defendants who had been charged
with acting as part of an organised criminal gang. The Chamber itself
recognises that the reasons for the applicant’s pre-trial detention “might have
existed” (see paragraph 88). In these circumstances, and contrary to the
majority, we consider that the need to obtain voluminous evidence from many
sources, coupled with the existence of a general risk flowing from the
organised nature of the applicant’s alleged criminal activities, constituted
relevant and sufficient grounds for extending his detention during the time
necessary to complete the investigation, to prepare the case for trial and to
hold a jury trial.
Regard being had to the above, we think that the combined
arguments advanced by the domestic courts when deciding to keep the applicant
in custody pending the criminal proceedings against him were capable of
justifying his detention.
Lastly, it should be noted that the proceedings were of
considerable complexity, taking into consideration the number of defendants,
the extensive evidentiary proceedings and the implementation of special
measures required in cases concerning organised crime. There is nothing in the
materials before the Court - a fact not disputed by the parties - to suggest
that there were significant periods of inactivity on the part of the
prosecution or the court. The period under consideration comprised the
investigation stage, the study of the case file by the defendants and the jury
trial. We therefore consider that the national authorities displayed special
diligence in the conduct of the proceedings.
Having regard to the foregoing, we conclude that there has
been no violation of Article 5 § 3 of the Convention.
