FIRST SECTION
CASE OF
VASILIY VASILYEV v. RUSSIA
(Application no.
16264/05)
JUDGMENT
STRASBOURG
19 February 2013
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Vasiliy Vasilyev v. Russia,
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 29 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
16264/05) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Vasiliy Nikolayevich Vasilyev
(“the applicant”), on 26 April 2005.
The applicant was represented by Mr F.
Bagryanskiy, Mr M. Ovchinnikov and Mr A. Mikhaylov, lawyers
practising in Vladimir. 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 unlawfully detained in the appalling conditions of a temporary detention
facility, that he had not been promptly notified of the charges against him,
and that the courts had denied him a speedy and effective review of the reasons
for his detention.
On 6 February 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lived until his
arrest in Vladimir.
A. Criminal
proceedings against the applicant
On 23 October 2004 an investigator of the Vladimir prosecutor’s office instituted criminal proceedings against the applicant on
suspicion of aggravated rape.
1. Arrest and detention
The applicant was arrested on
25 October 2004. The arrest record was issued at 8.20 p.m. on the same day. It did
not indicate the grounds for the applicant’s arrest, save for a reference to
Article 91 § 2 of the Russian Code of Criminal Procedure. The applicant signed
the arrest record, noting that he had been informed of his constitutional
rights as an accused, including the right to remain silent and to be assisted
by counsel. It appears that the investigator made a handwritten note in the
arrest record, stating that the applicant had not been searched.
After the investigator had drawn up the arrest
record, he began questioning the applicant in the presence of his lawyer, Mr
Bagryanskiy. The record shows that the questioning started at 9.35 p.m. The
record bears the applicant’s signature after the paragraph stating that he was
informed of the nature of the accusations against him, namely, that he was
suspected of having participated in a gang rape on 23 October 2004. He was
informed that his car, in which the rape had allegedly taken place, had been
seized. The applicant made a handwritten entry in the record, noting that he
had decided to make use of his constitutional rights and would remain silent.
The applicant’s counsel, Mr Bagryanskiy, wrote in the record that the applicant
had not been provided with details surrounding the alleged criminal offence and
that therefore the reasons for his arrest had not been explained to him.
(a) Authorisation of the pre-trial detention:
detention order of 27 October 2004
On 27 October 2004
the Leninskiy District Court of Vladimir authorised the applicant’s pre-trial detention,
holding as follows:
“[The applicant] is employed [and] has a permanent place of
residence.
However, he has a previous conviction; [the parties] did not
provide the court with information showing that the criminal record had expired.
[The applicant] is suspected of having committed a serious criminal offence
against an individual; [the offence] is punishable by imprisonment. The victim
identified [the applicant] as a perpetrator of the criminal offence against
her. It follows that, if released, [the applicant] might influence the victim
during the pre-trial and judicial investigation; therefore, the victim took
part in the identification parade in conditions whereby [the applicant] was
prevented from seeing [her].
Consequently, the court accepts the motion of the senior
investigator of the Vladimir prosecutor’s office to place [the applicant] in
custody.”
The applicant’s lawyer appealed, arguing that
the applicant had not been properly and promptly informed of the reasons for
his arrest and that his detention was unlawful. Several days later the lawyer lodged
an additional appeal, requesting the applicant’s release on bail or the
application of an alternative, more lenient, measure of restraint. Relying on
Article 3 of the Convention, the lawyer urged the Regional Court to take into
account the appalling conditions of detention to which the applicant would be
subjected. He also argued that the applicant had no criminal record and that
the District Court had not had any information disputing that fact.
On 5 November
2004 the Vladimir Regional Court upheld the detention order, endorsing the
reasons given by the District Court. It noted, in particular, the gravity of
the charges against the applicant and his previous conviction, as confirmed by
police records presented by the prosecution authorities and undisputed by the
applicant. As regards the lawyer’s argument concerning the conditions of the
applicant’s detention, the Regional Court noted that it was not the courts’
task to deal with the matter in that set of proceedings.
(b) Extension
of the detention: order of 22 December 2004
On 22 December 2004
the Leninskiy District Court extended the applicant’s detention until 11
January 2005 inclusively, noting the applicant’s “personality”, the gravity of
the charges against him and the likelihood that he would abscond, re-offend and
pervert the course of justice.
The applicant’s lawyer appealed, arguing that
the detention was unlawful and excessively long. The lawyer also reiterated the
arguments that he had put forward in his statement of appeal against the
detention order of 27 October 2004.
On 1 February 2005
the Vladimir Regional Court upheld the decision of 22 December 2004, holding as
follows:
“Having examined the materials presented in the appeal statements,
the court decides as follows.
While examining whether it was necessary to extend [the
applicant’s] detention, the judge correctly took into account the gravity of
the charges [and] the information on the accused’s character.
It follows from the materials presented that [the applicant]
was held liable for an administrative offence.
The judge’s conclusion that [the applicant] is likely to
abscond from the pre-trial investigation and judicial proceedings, to continue his
criminal activities, and to pervert the course of justice is corroborated by
the record of an additional interrogation of the victim, which is enclosed in
the case file and from which it follows that the victim has been receiving insulting
phone calls which frighten her and which she considers a way of applying mental
pressure on her for having instituted the criminal proceedings.
The extension of [the applicant’s] detention is also connected
to the necessity of carrying out investigative measures with a view to closing
the pre-trial investigation.
The judge examined the possibility of applying another, more
lenient, measure of restraint to [the applicant], as reflected in the decision,
which states that applying a different measure of restraint to the accused
cannot be justified.
...
By virtue of the requirements of the Russian Code of Criminal
Procedure, when a judge examines an extension of detention issue, [he] does not
have to take into account the conditions of [the applicant’s] detention, as
raised by the lawyer in his appeal statement”.
(c) Request
for release: decision of 14 February 2005
On 9 December 2004
the applicant’s counsel, Mr Bagryanskiy, submitted a request for the applicant’s
release to the Leninskiy District Court, arguing that his arrest and subsequent
detention were unlawful.
According to the Government, two hearings
scheduled for 23 December 2004 and 17 January 2005 were postponed following
the prosecutor’s request for a stay in the proceedings or in view of his
absence from a hearing. Another delay in the proceedings occurred when the prison
transport service did not bring the applicant to the courthouse. The hearing on
1 February 2005 was rescheduled because the applicant’s lawyer did not attend.
On 14 April 2005 the Leninskiy District Court
discontinued the proceedings on the ground that the applicant had been committed
to stand trial and that the first trial hearing had been scheduled for 8
February 2005.
On 17 May 2005 the
Vladimir Regional Court dismissed an appeal lodged by the applicant,
upholding the District Court’s findings.
(d) Detention
from 12 January to 13 October 2005
i. Decision of 25 January 2005
In the
meantime, on 12 January 2005 the period of the applicant’s detention authorised
by the decision of 22 December 2004 expired. On the following day the
applicant, having been served with the final version of the bill of indictment
for charges of aggravated robbery and sexual assault in addition to aggravated
rape, was committed to stand trial before the Frunzenskiy District Court. The
court received the case file on 17 January 2005.
20. At the preliminary hearing on
25 January 2005 the Frunzenskiy District Court, having noted that the applicant
and his co-defendant were charged with a serious criminal offence, that the
applicant had been held administratively liable and that there were reasons to
believe that, if released, he and his co-defendant would abscond, threaten the
victim and pervert the course of justice, concluded that there were no grounds for
changing the measure of restraint.
21. On 16 March 2005 the Vladimir
Regional Court upheld the decision of 25 January 2005, finding that the lawyers’
arguments that the defendants had permanent places of work and residence in
Vladimir and that they had no intention of absconding did not suffice to
conclude that the District Court’s decision had been incorrect. The Regional Court also noted that there were no grounds for releasing the defendants after 11
January 2005 because they were considered to be detained “pending judicial
proceedings”. In the Regional Court’s opinion, after the District Court had
received the criminal case file, it had six months to examine the issue of the
applicant’s detention.
ii. Remittal
for further investigation and request for release: decision of 27 April
2005
In April 2005 a lawyer for the applicant, Mr G.,
asked the Frunzenskiy District Court to remit the case to the prosecutor’s
office for further investigation because the investigators had committed
various procedural violations and had breached the applicant’s defence rights.
At the same time, the applicant’s counsel sought his release.
On 27 April 2005
the District Court remitted the case for further investigation and noted that
the measure of restraint applied to the applicant and his co-defendant “should
remain unchanged”, as the circumstances which had served as the grounds for
their arrest were still present and there were no reasons to authorise a
change.
On 28 June 2005
the Vladimir Regional Court upheld the decision, noting that it was
well-founded. The Regional Court also found that the co-defendants’ detention
was within the six-month period authorised by the provisions of the Code of
Criminal Procedure.
(e) Extension
of the detention until 13 October 2005: order of 7 July 2005
On 7 July 2005 the
Frunzenskiy District Court authorised the extension of the applicant’s and his
co-defendant’s detention for an additional three months, until 13 October 2005.
The District Court stated that the authorised period of the applicant’s
detention would expire on 13 July 2005 because the District Court had
received the case file on 13 January 2005. It concluded that the
defendants had been charged with serous criminal offences and were likely to
abscond, pervert the course of justice and threaten the victim.
On 11 August 2005
the Vladimir Regional Court upheld the decision, reasoning as follows:
“Having discussed the arguments put forward in the appeal
statement, the court considers that the decision [of 7 July 2005] is lawful and
well-founded.
When the [District] court was taking the decision, [it] took
into account the gravity of the three criminal offences which are punishable by
more than ten years’ imprisonment and which are considered serious, posing a particular
danger to society. The arguments laid down in the appeal statement were examined
by the court and the respective findings were made. [It] was found that there
were no grounds for changing the measure of restraint. The above-mentioned
findings are reasoned and the reasoning should be considered convincing.
The courts of the first and second instances examined the
complaints that the arrest on 25 October 2004 had been unlawful and that after
11 January 2005 [the applicant and his co-defendant] had been detained
unlawfully, and found them to be unsubstantiated.”
(f) Extension
of the detention until 13 January 2006: order of 13 October 2005
On 13 October 2005 the
Frunzenskiy District Court extended the applicant’s and his co-defendant’s
detention until 13 January 2006. The wording of the decision was identical
to that issued on 7 July 2005.
On 23 November 2005
the Vladimir Regional Court upheld the decision, endorsing the reasons given by
the District Court.
(g) Extension
of the detention until 13 April 2006: order of 11 January 2006
On 11 January 2006
the Frunzenskiy District Court, in a decision identical to those issued on 7
July and 13 October 2005, extended the applicant’s and his co-defendant’s
detention until 13 April 2006.
On 7 March 2006
the Vladimir Regional Court dismissed an appeal lodged by the applicant,
concluding that the District Court’s findings were lawful and well-reasoned.
2. Conviction
On 10 April 2006 the Frunzenskiy District Court
found the applicant guilty as charged and sentenced him to five years’
imprisonment and a fine. The judgment was not appealed against and became
final.
B. Conditions of detention
On 3 November 2004 the applicant was placed in
detention facility no. IZ-33/1 in Vladimir. During the entire period of his
detention, until 12 May 2006, he was kept in three different cells: nos.
50, 52 and 56. On 10 November 2004 he was held for several hours in cell
no. 50. From 3 to 15 November 2004 and from 6 to 17 May 2005 he was kept in
cell no. 56. For the remaining period of his detention he applicant was held in
cell no. 52.
Relying on certificates issued by the head of
the detention facility in May 2009 and barely legible extracts from prison population
logs for four days in 2004 and twelve days in 2005, the Government submitted that
cell no. 50 measured 77.35 square metres, had had twenty-two sleeping places
and housed between ten and twenty-two inmates. Cell no. 52 measured approximately
39.4 square metres, had ten bunks and accommodated from six to ten persons.
Cell no. 56 measured approximately 58 square metres, had sixteen sleeping
places and housed ten to sixteen persons. To the extent that it was possible
for the Court to decipher the extracts from the prison population logs, the
number of detainees housed in the cells on the relevant days corresponded to
the highest number indicated by the Government for each cell. The Government
also submitted that the applicant had always had an individual sleeping place.
The Government further submitted that cell no.
52 had one window and the two other cells had two each. Each window measured 1.1
square metres. From 6 a.m. to 10 p.m. the cell was lit by two or four 80 watt bulbs.
At night a 40 watt bulb lit the cell. Each cell had a properly functioning air
conditioning system and a heater installed below the window. In addition,
inmates were allowed to open a casing in the windows to give them access to
fresh air. According to the Government, each cell was equipped with a tap and a
lavatory pan, which were installed in a corner, more than 3 metres from a
table. The lavatory pan was separated from the living area by a 1.9 metre-high
partition. Inmates were allowed to take a shower once every seven days, for
which they were afforded between fifteen and thirty minutes. The facility’s shower
room was equipped with twelve shower heads. The Government supported their submission
with a copy of the schedules of seven “shower days” for cell no. 52, in which
the applicant was being held at the time. The schedules showed that the entire
cell population had been afforded fifteen minutes to take a shower. According
to the schedule lists, from eight to ten inmates had been taken from cell no.
52 to the shower room.
Lastly, the Government stated that the sanitary
conditions in the facility had complied with the existing legal requirements.
The applicant had received an adequate quantity of food of proper quality.
Medical assistance had been provided to him whenever necessary and free of
charge. The Government also submitted black-and-white photographs of cells nos.
52 and 56 and of the shower room taken at the end of 2009 in facility no.
IZ-33/1.
In the additional observations submitted to the
Court on 16 October 2009, the Government stressed that the information concerning
the cell floor space and the number of sleeping places had been verified by the
Federal Service for the Execution of Sentences. The representatives of the
Service discovered certain discrepancies between the information provided by
the head of facility no. IZ-33/1 and the actual situation. In particular, cell
no. 50 measured 47.35 square metres and had thirty-three sleeping places. Cell
no. 56 measured 58 square metres and had forty-two sleeping places. The
information provided by the head of the facility about cell no. 52 was correct.
The Government further submitted that it was impossible to establish the exact
number of inmates detained together with the applicant, as the prison population
logs had been destroyed prior to the expiry of the statutory time-limit. The official
who had destroyed them had been sanctioned. The Government provided the Court
with a certificate issued by a committee of the Federal Service for the Execution
of Sentences as a follow-up to the inquiry into the incident. Having noted that
the head of facility no. IZ-33/1 had provided the Government with incorrect
information concerning the conditions of the applicant’s detention and that the
Court would probably interpret that fact unfavourably for the Government, the
members of the committee stated that it was impossible to establish who had
provided the head of the facility with the misleading information.
While the applicant had provided slightly different
measurements of the cells, his main dispute was about the number of inmates held
in each cell. In particular, he argued that cell no. 52 had twenty-one sleeping
places and had usually housed twenty-five to thirty detainees. Cell no. 50,
which was equipped with thirty-three sleeping places, housed approximately fifty
detainees. Cell no. 56 housed between forty-five and fifty-five detainees. The
applicant insisted that owing to severe overcrowding, he had not had an
individual bunk. Inmates had had to take turns to sleep. He further pointed out
that detainees had been kept in extremely cramped conditions. Part of the cell floor
space was occupied by metal bunks serving as beds for the occupants. The rest
of the space was taken up by a wooden table, a bench, shelves, a tap, and a
lavatory pan. That arrangement had left inmates with literally no free space
where they could move. There was a lavatory pan in the corner of the cell, just
a few metres away from the wooden table and bunk beds, separated from the
living area by a partition no more than 90 cm high. Given that the lavatory pan
was installed on a 30 to 40 cm-high pedestal, the partition did not offer any
privacy. A curtain which inmates hung to obtain some privacy was removed by the
wardens. Furthermore, the facility administration did not provide inmates with
cleaning fluids. The lavatory pan was always dirty and had no lid, allowing unpleasant
odours to permeate the cell.
The applicant further stated that the cells had
had no air conditioning system. They had been damp, stuffy and dark inside.
Inmates had been allowed to smoke in the cells, which had been unbearable for
the applicant, who did not smoke. Detainees had also washed their clothes in
the cells, creating excessive humidity. The cell windows had been too small and
had not allowed sufficient light to enter the cells as they were covered by
metal netting. The fluorescent lighting had been constantly on. The cells had
been infected with bed-bugs, lice and cockroaches but the administration had not
provided any insecticides. Inmates had not been provided with toiletries. They had
been allowed to take a shower once every seven days. Fifteen minutes had been afforded
to fifteen to twenty inmates, while only four to five shower heads had worked.
Food had been very scarce and of low quality. Inmates had been allowed to have
an outdoor walk for an hour a day in the facility courtyards. The courtyards had
been covered by metal roofs, with merely a metre of empty space between the
walls and the roof.
The applicant
supported his submissions with statements by two inmates: Mr Y. and Mr Z. Between
30 January 2004 and 1 July 2005 Mr Y. had been detained together with the
applicant in cells nos. 52 and 56. Although Mr Z., the applicant’s
co-defendant, had never shared a cell with the applicant, he had been housed in
the facility at the same time as the applicant. Mr Z. had also been kept in
cells nos. 50 and 52. Both detainees’ descriptions of the detention conditions were
very similar to that given by the applicant.
The applicant also submitted four colour
photographs of a cell which he had shared with twenty-three other inmates. The
photographs showed from eight to ten inmates in a very small and sombre room
with a row of three-tier bunk beds installed along a wall. According to the
applicant, the remaining inmates had been taken for their daily outdoor walk
when those photographs had been taken. The photographs also showed a long table
with two benches placed between the bunks and another wall. The remaining floor
space not taken up by the furniture was only sufficient to allow the entire
cell population to stand shoulder to shoulder. The bunks
were not separated from each other. The inmates had hung linen and clothes on
the bunks to get some privacy. There was dirty and worn-out bedding on the
bunks, which were installed in such a way that they blocked the window. The
window was covered with two rows of metal bars. The photographs also showed a
heavily scratched floor and walls with peeling paint. The furniture was in a
very dilapidated state. The bunks were rusty, and clothes had been hung on a
rope below the ceiling.
41. In
addition, the applicant provided the Court with a copy of order no. 7
issued on 31 January 2005 by the Federal Service for the Execution of
Sentences. The order dealt with the renovation programme of temporary detention
facilities in Russia for 2006. It contained a list of temporary detention
facilities and the conditions of detention therein which raised particularly
serious concerns. Detention facility no. IZ-33/1 in Vladimir was among them. The
order indicated that, with 1,009 detainees, the facility was housing twice its
maximum capacity (507 places). It also indicated that inmates in that facility
had less than 2.5 square metres of personal space.
42. Lastly, the
applicant presented copies of letters to the Vladimir regional prosecutor from
the same head of facility no. IZ-33/1 on whose certificates the Government had relied
in their submission to the Court. The letters concerned an inmate, Mr N., who
had been detained in the facility from 13 April 2004 to 27 June 2006. Mr N. had
also stayed in cells nos. 50 and 56. In his letters to the prosecutor, the head
of the facility indicated that cell no. 50 measured 47.35 square metres, had thirty-three
bunks and housed twenty-four to thirty-three inmates. Although he indicated the
same size of cell no. 56 as in the certificate that he had submitted to the
Government, the head of the facility noted that that cell had forty-two
sleeping places and twenty-nine to forty-two persons had been detained there
together with Mr N.
. The
applicant lodged a number of complaints before various domestic authorities,
including the courts, alleging that he had been detained in appalling
conditions. The complaints were to no avail.
II. RELEVANT DOMESTIC LAW
The Russian legal regulations for detention are
explained in the judgments of Isayev v. Russia (no. 20756/04, §§ 67-80,
22 October 2009) and Pyatkov
v. Russia (no. 61767/08, § 59,
13 November 2012).
The relevant provisions of domestic and
international law on conditions of detention are set out, for instance, in the
Court’s judgment in the case of Gladkiy v. Russia (no. 3242/03, §§ 36, 38 and 50, 21 December 2010).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in facility no. IZ-33/1 in Vladimir from 3 November 2004 to 12
May 2006 had breached Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Submissions by the
parties
. In
their first line of argument, the Government submitted that the applicant had
failed to exhaust domestic remedies. In particular, the applicant could have
lodged a complaint with a competent court about the conditions of his
detention. In the alternative, the Government submitted that
the conditions of the applicant’s detention had fully complied with the
domestic legal requirements and corresponded to the standards guaranteed by
Article 3 of the Convention. They urged the Court to dismiss the applicant’s
complaint as being manifestly ill-founded.
Relying on the written statements of his fellow
inmates, the order of the Federal Service for the Execution of Sentences, and
letters from the head of facility no. IZ-33/1 to the Vladimir regional prosecutor,
the applicant insisted that the conditions of his detention had been inhuman
and degrading. He maintained his description of the detention conditions,
alleging severe overcrowding, poor sanitary conditions, insufficient lighting
and inadequate food.
B. The
Court’s assessment
1. Admissibility
As to the Government’s objection concerning the
applicant’s alleged failure to exhaust domestic remedies, the Court has already rejected identical objections by the
Russian Government in a number of cases regarding conditions of detention,
having found that neither a complaint to the administration of a detention
facility (see Benediktov v. Russia, no. 106/02, § 29, 10 May
2007, with further references) nor a tort action
(see, for example, Aleksandr Makarov v. Russia, no. 15217/07, §§ 82-91,
12 March 2009; Artyomov v. Russia, no. 14146/02, § 112, 27 May
2010; Arefyev v. Russia, no. 29464/03, § 54, 4 November 2010; and Gladkiy
v. Russia, no. 3242/03,
§ 55, 21 December
2010) could be
regarded as an effective remedy for the purpose of Article 35 § 1 of the
Convention. Lastly, in the case of Ananyev
and Others v. Russia (nos. 42525/07 and 60800/08, §§ 100-19, 10 January 2012), having found a violation of Article 13 of the Convention,
the Court concluded that, for the time being, the Russian legal system did not
dispose of 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 about inadequate conditions
of detention.
. The
Court sees no reason to depart from its previous findings in the present case.
Accordingly, it dismisses the Government’s objection as to non-exhaustion of
domestic remedies.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The Court observes that the parties have
disputed certain aspects of the conditions of the applicant’s detention in
facility no. IZ-33/1 in Vladimir. However, there is no need for the Court to
establish the veracity of each and every allegation, because it finds a
violation of Article 3 on the basis of the facts which have been presented
to it and which the respondent Government failed to refute.
The focal point for
the Court’s assessment is the living space afforded to the applicant in the
detention facility. The applicant claimed that the number of detainees
in the cells had considerably exceeded their design capacity. The Government
argued that the applicant had been afforded sufficient personal space and an
individual sleeping place at all times.
The Court notes that the Government relied on
certificates issued by the head of the detention facility almost three years
after the applicant’s detention in that facility had come to an end. At the
same time, in their additional observations they informed the Court about the
misleading nature of the information provided in the certificates issued by the
head of the facility. The most recent submissions by the Government supported,
to a large extent, the applicant’s statements concerning the size of the cells
and the number of sleeping places in them. The Government, however, stressed
that they were unable to provide information on the exact number of inmates
detained together with the applicant as the prison population logs had been
prematurely destroyed. The Court therefore does not accept the certificates
prepared by the head of the facility as reliable sources of information. Nor in
the Court’s opinion do the extracts from the prison population logs or the photographs
of facility no. IZ-33/1 taken at the end of October 2009 have any evidentiary
value. The former items are not representative and the photographs do not
relate to the period when the applicant was held in the facility.
The Court is, however, mindful of the evidence
provided by the applicant in support of his description of the conditions of
his detention. In particular, according to the order of the Federal Service for
the Execution of Sentences, in 2004-2005 the number of inmates detained in
facility no. IZ-33/1 was twice its maximum capacity, leaving inmates with less
than 2.5 square metres of personal space (see paragraph 41 above). The photographs of
cell no. 52 and the written statements of the two inmates are additional
evidence corroborating the applicant’s allegations of poor detention conditions.
Accordingly, having regard to the evidence
submitted by the applicant, as well as the Government’s failure to submit reliable
and convincing information in support of their claims, the Court finds it
established that the cells in facility no. IZ-33/1 were overcrowded. The Court
also accepts the applicant’s submissions that, owing
to the overpopulation in the cells and the resulting lack of sleeping places,
he had to take turns with other inmates to rest. The
Court observes that it has previously examined four cases concerning the
conditions of detention in facility no. IZ-33/1, three of which concerned applicants who had been detained there
at the same time as the applicant in the present case. In those four cases the
Court found the conditions of detention in that facility to have been
incompatible with the requirements of Article 3 of the Convention on account of
severe overcrowding (see Mamedova v.
Russia, no. 7064/05, §§ 61-67, 1 June
2006 (detention from 23 July 2004 to 19 May 2005); Sukhovoy v. Russia, no.
63955/00, §§ 20-34, 27 March 2008 (detention from 8 January to 2 August
2000); Nazarov v. Russia, no. 13591/05, §§ 80-83, 26 November 2009 (detention from April 2004 to summer 2006) and Veliyev v. Russia, no. 24202/05, §§ 126-130, 24 June 2010 (detention from March 2004 to August 2007)).
The Court fully supports those findings in the
present case. It further observes that, irrespective
of the reasons for the overcrowding, it is incumbent on the respondent
Government to organise its prison system in such a way as to ensure respect for
the dignity of detainees, regardless of financial or logistical difficulties
(see Mamedova, cited above, § 63).
The applicant’s situation was further
exacerbated by the fact that the opportunity for outdoor exercise was limited
to one hour a day, leaving him with twenty-three hours per day of detention in
the facility without any freedom of movement. The Court also does not overlook the
applicant’s argument, as supported by the written statements of his fellow
inmates and the colour photographs of the cell, that he had limited access to
natural light and fresh air. Although the photographs provided by the applicant
showed that there were no blinds or shutters on the windows, the rows of three-tier
bunks were installed in such a way that they significantly reduced the amount
of daylight that could penetrate the cells. Two rows of metal bars installed on
the windows served as an additional barrier to daylight. The Court therefore
finds it established that the window arrangements allowed little access to
natural light. Given those window arrangements, it follows that the circulation
of fresh air was equally limited. It therefore appears that the applicant had
to spend a considerable part of each day in a cramped cell with no window in
the proper sense of the word (compare Peers v. Greece, no. 28524/95, §
75, ECHR 2001-III). Furthermore, the Court notes that the fact that
the applicant had access to a shower for no more than fifteen minutes once a
week raises serious concerns as to the conditions of hygiene and sanitation in
the facility, given the acutely overcrowded accommodation in which he found
himself (see, for similar reasoning, Melnik v. Ukraine, no. 72286/01, §
107, 28 March 2006). Lastly, the Court notes the
applicant’s submission that it was unbearable to him that inmates had been
allowed to smoke in the cells (see paragraph 38 above). In the Court’s opinion
the detention of the applicant, a non-smoker, for almost two years with smokers
could have caused him considerable distress in the absence of adequate
ventilation (see Gultyayeva v. Russia, no. 67413/01, § 160, 1 April 2010).
The Court takes note of the photographs showing
the interior of the cell where the applicant was detained. The cell was
evidently in a deplorable state of repair and cleanliness. The concrete walls,
the ceiling and the floor were damaged. The metal beds were rusty and
dilapidated, while the bedding was worn out and dirty. The bunks were installed
in such a way that the sleeping places were not separated even by a minimal
distance. The photographs attest to the inmates’ attempts to obtain at least
some privacy by barricading their bunks with uniforms or bedding. The Court
considers that such conditions can only be described as degrading and unfit for
human habitation (see, for similar reasoning, Zakharkin v. Russia, no.
12555/04, § 126, 10 June 2010).
To sum up, the Court has frequently found a
violation of Article 3 of the Convention on account of lack of personal space
afforded to detainees (see Khudoyorov v.
Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44
et seq., 16 June 2005; Novoselov
v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00,
§§ 39 et seq., 20 January 2005; Kalashnikov
v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers, cited above, §§ 69 et seq.).
Having regard to its case-law on the subject and
the material submitted by the parties, the Court notes that the Government have
not put forward any fact or argument capable of persuading it to reach a
different conclusion in the present case. Although in the present case there is
no indication that there was a positive intention to humiliate or debase the
applicant, the Court finds that the fact that he was obliged to live, sleep and
use the toilet in the same cell as so many other inmates for more than a year
and a half was itself sufficient to cause distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention, and to
arouse in him feelings of fear, anguish and inferiority capable of humiliating
and debasing him.
The Court finds, accordingly, that there has
been a violation of Article 3 of the Convention because the applicant was
subjected to inhuman and degrading treatment on account of the conditions of
his detention in facility no. IZ-33/1 in Vladimir from 3 November 2004 to 12
May 2006.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained under Article 5 § 1 (c)
that his detention from 12 January to 13 July 2005 had been unlawful, as it had
not been based on any legal order. The relevant parts of Article 5 provide:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so ...”
A. Submissions by the parties
The Government argued that the applicant’s
detention had been lawful, complying with the requirements of Article 5 § 1 (c)
of the Convention. They submitted that the period of the applicant’s detention
authorised by the court on 22 December 2004 had expired on 12 January
2005. Five days later, on 17 January 2005, the case was sent to the Frunzenskiy
District Court of Vladimir for trial. During a preliminary hearing on
25 January 2005 the District Court ruled on the issue of the applicant’s
and his co-defendant’s detention, having noted that the measure of restraint
should remain unchanged. Having issued that decision, the District Court took
into account that the applicant had been charged with particularly serious
crimes, that he had been held administratively and criminally liable before and
that he might abscond and pervert the course of justice. The Vladimir Regional Court, which examined an appeal against that decision, considered it to be
reasonable and lawful. The applicant’s detention continued within the six-month
time-limit established by the Code of Criminal Procedure, as interpreted by the
courts at the time.
The applicant submitted that his detention had
lacked any legal basis. He argued that the only reason for his continuous
detention had been the fact that the case had been sent for trial to the
Frunzenskiy District Court. Thus in the absence of a court decision, he had
been held on the basis of a legal norm.
B. The
Court’s assessment
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. The complaint
must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that
Article 5 of the Convention enshrines a fundamental right, namely the
protection of the individual against arbitrary interference by the State with
his or her right to liberty. In proclaiming the “right to liberty”, paragraph 1
of Article 5 contemplates the physical liberty of the person; its aim is to
ensure that no one should be deprived of that liberty in an arbitrary fashion.
It is not concerned with mere restrictions on the liberty of movement; such
restrictions are governed by Article 2 of Protocol No. 4. The Court also points
out that paragraph 1 of Article 5 makes it clear that the guarantees it
contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1
contain an exhaustive list of permissible grounds on which persons may be
deprived of their liberty and no deprivation of liberty will be lawful unless
it falls within one of those grounds.
. Where
the “lawfulness” of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform to the
substantive and procedural rules of national law. Compliance with national law
is not, however, sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of protecting the
individual from arbitrariness. It is a fundamental principle that no detention
which is arbitrary can be compatible with Article 5 § 1 and the notion of
“arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national
law, so that a deprivation of liberty may be lawful in terms of domestic law
but still arbitrary and thus contrary to the Convention (see Creangă
v. Romania [GC], no. 29226/03,
§ 84, 23 February 2012).
(b) Application of the general principles to the present
case
The Court notes that on 12 January 2005 the
period of the applicant’s detention authorised by the order of the Leninskiy
District Court on 22 December 2004 expired. A further decision on his detention
was taken on 25 January 2005, when the Frunzenskiy District Court held the
preliminary hearing and found no grounds for releasing the applicant. The
appeal decision issued by the Vladimir Regional Court shows that the extension
of the applicant’s detention after 11 January 2005 was the result of the courts’
interpretation of the Russian law on criminal procedure, which permitted the detention
of an accused for six months after his or her case had been remitted to the
trial court for examination on the merits (see paragraphs 19-21 above). The applicant’s detention was further extended on 7 July 2005, when the
District Court authorised his detention from 13 July to 13 October 2005.
According to the applicant, his detention
between 12 January and 13 July 2005 had been unlawful, having merely been
based on the judicial interpretation of “detention pending judicial
proceedings”. The Government argued that the applicant’s detention during that
period had been based on the District Court’s decision of 25 January 2005 and
the fact that on 13 January 2005 the applicant’s case had been transferred
to the trial court.
The Court notes that after the authorised period
of the applicant’s detention on 12 January 2005, it was not until 25 January
2005 that the Frunzenskiy District Court issued an order authorising his
further detention. The Government did not refer to any court order authorising the
applicant’s detention for the period between 12 and 25 January 2005.
They merely stressed that during that period the
applicant had been kept in detention on the basis that the criminal case
against him had been referred to the court competent to deal with it.
. The
Court has already examined and found a violation of Article 5 § 1 in a
number of cases concerning the practice of holding defendants in custody solely
on the basis that a bill of indictment has been lodged with the court competent
to try the case (see Baranowski, cited above, §§ 53-58, and Ječius, cited above, §§ 60-64). It has held that such practice is
incompatible with the principles of legal certainty and protection from
arbitrariness, which are common threads throughout the Convention and the rule
of law (ibid.). The Court has repeated this finding in a number of cases
against Russia concerning a similar set of facts (see, for example, Khudoyorov
v. Russia, no. 6847/02, §§ 147-151, ECHR
2005-X (extracts), and Korchuganova v. Russia, no. 75039/01, § 57, 8 June 2006).
. The
Court sees no reason to depart from those finding in the present case. It is
also not prepared to interpret the detention order of 25 January 2005 as the
one authorising the applicant’s detention retrospectively, in respect of the
preceding period between 12 and 25 January 2005. It has always been the Court’s
position that any ex post facto authorisation of detention on remand is incompatible with the
“right to security of person” as it is necessarily tainted with arbitrariness.
Permitting a prisoner to languish in detention on remand without a judicial
decision based on concrete grounds and without setting a specific time-limit
would be tantamount to overriding Article 5, a provision which makes detention
an exceptional departure from the right to liberty and one that is only
permissible in exhaustively enumerated and strictly defined cases (see Khudoyorov, cited above, §
142).
. At
the same time, the Court observes that the applicant’s detention after 25
January 2005 and until 13 July 2005 was based on the detention order issued by
the Frunzenskiy District Court at the preliminary hearing. The District Court
provided certain grounds for its decision. While noting a certain ambiguity in
the wording used by the District Court, the Court is convinced that it was
obvious to the applicant and his lawyers that the authorised period of
detention could not exceed six months. It can therefore accept that the
District Court implicitly set the time-limit for the applicant’s detention.
Furthermore, it has never been alleged by the applicant that the District Court
acted in excess of its jurisdiction, or that there were any flaws in the
relevant detention order amounting to “a gross and obvious irregularity” so as
to render the underlying period of detention in breach of Article 5 § 1 of the
Convention (see Mooren v. Germany [GC], no. 11364/03, § 84, 9 July 2009).
. To
sum up, the Court finds that there was a violation of
Article 5 § 1 of the Convention with regard to the applicant’s
detention from 12 to 25 January 2005 and no
violation of Article 5 § 1 of the Convention with regard to the detention order
of 25 January 2005, which served as the basis for the applicant’s detention
between 25 January and 13 July 2005.
III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
The applicant further complained that he had not
been promptly informed of the charges against him. He relied on Article 5 § 2
of the Convention, which reads as follows:
“2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him.”.
. The
Court reiterates that paragraph 2 of Article 5 contains the elementary
safeguard that any person arrested should know why he is being deprived of his
liberty (see Čonka v. Belgium, no. 51564/99, § 50, ECHR 2002-I). This provision is a minimum safeguard against arbitrary
treatment and an integral part of the scheme of protection afforded by Article
5: by virtue of paragraph 2 any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal and factual
grounds for his arrest, so as to be able, if he sees fit, to apply to a court
to challenge its lawfulness in accordance with paragraph 4 of Article 5 of the
Convention. Whilst this information must be conveyed “promptly”, it need not be
related in its entirety by the arresting officer at the very moment of the
arrest. Whether the content and promptness of the information conveyed were
sufficient is to be assessed in each case according to its special features
(see Fox, Campbell and Hartley v. the United Kingdom, 30 August
1990, § 40, Series A no. 182).
. For
instance, in the case of Murray v. the United Kingdom (28 October
1994, § 78, Series A no. 300-A), where the applicant was arrested at
her home at 7 a.m. and questioned from 8.20 a.m. to 9.35 a.m. on the same
day, the Court considered the notification to be sufficiently prompt. At the
same time the Court has stated in a number of cases that no more than a few
hours should elapse, save in exceptional circumstances, such as the serious
incapacity of the arrested person to comprehend the reasons that might have
been given. Thus, where an applicant was merely told that he was being arrested
under a particular provision and was not questioned until the next day, the
Court has found that the alleged practical problems in assembling an interview
team late at night were not sufficient where the fundamental importance of the
right to liberty was at stake (see, for example, James Clinton and Others v.
the United Kingdom, nos. 12690/87, 12731/87, 12823/87, 12900/87, 13032/87,
13033/87, 13246/87, 13231/87, 13232/87, 13233/87, 13310/87, 13553/88 and
13555/88, Commission’s report of 14 October 1991, Decisions and Reports
(DR) 95, § 46).
The Court observes that the facts of the present
case are very similar to those that it examined in the case of Murray v. the
United Kingdom (cited above). In particular, it was not disputed by the
parties that at approximately 8.20 p.m. on 25 October 2004, when the
record of the applicant’s arrest was drawn up, he was merely told that a
particular provision of the Code of Criminal Procedure permitted his arrest. As
the Government explained, that provision listed procedural grounds, such as the
risk that a suspect might abscond, as reasons for depriving the applicant of his
liberty. There is no evidence that the applicant was informed of the charges
against him at the time of his arrest. However, the factual grounds for his
arrest were made clear to him during the first interrogation, merely an hour
later, when he was informed that he was suspected of having participated in a
gang rape on 23 October 2004. In the context of the
present case, this interval cannot be regarded as falling outside the
constraints of time imposed by the notion of promptness in Article 5 § 2
of the Convention.
While noting the dissatisfaction of the
applicant’s lawyer with the amount of information provided to his client about
the alleged criminal offence, the Court is convinced that the information given
to the applicant, as well as the questions which were posed to him by the
investigator during the interrogation, were sufficient for the applicant to
clearly understand the concrete grounds for his arrest. The Court reiterates
that Article 5 § 2 of the Convention does not require that the information
provided to an arrestee consist of a complete list of all the charges, nor that
all of the information which might be available to the investigating
authorities be disclosed to the suspect. At that stage of the proceedings the
authorities could not be expected to provide the applicant with such a
description of the facts. Such detail is necessary to
justify a conviction, or even to file a bill of indictment, which was the next
stage of the criminal investigation process (see Murray,
cited above, § 77; and Kerr v. the United Kingdom (dec.), no.
40451/98, 7 December 1999).
. In
the context of the case, the Court therefore considers that the authorities
complied with their obligations under Article 5 § 2 of the Convention. Accordingly,
this complaint must be rejected as manifestly ill-founded
and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
In his application the applicant complained of a
violation of his right to trial within a reasonable time and alleged that insufficient
reasons had been provided for ordering his detention. He relied on Article 5 §
3 of the Convention, which provides:
“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 submitted that the courts had
authorised the applicant’s arrest because they had sufficient reasons to
believe that he had committed aggravated rape. The fact that the applicant
already had a criminal record which had not yet been expunged had served as an
additional ground for concluding that he had been likely to reoffend and pervert
the course of justice. In particular, he might have hindered the investigators’
search for the victim’s mobile phone. The Government further submitted that the
applicant had been charged with a particularly grave criminal offence and that
the victim had identified him as a perpetrator. They considered that the
reasons for the applicant’s detention for slightly over seventeen months had
been relevant and sufficient. The Government further stressed that the case had
been complex; the authorities had needed time to investigate and examine the
case thoroughly; they had carried out a large number of procedural measures,
summoned expert opinions, collected evidence and dealt with numerous motions
from the defence team. Furthermore, the proceedings had been delayed as a
result of the unavailability of the lawyers, who had been ill, busy with other
trials or had taken leave.
In his observations to the Court, the applicant requested
the withdrawal of his complaint.
Taking into account the applicant’s request and
finding no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which require the
continued examination of the present complaint under Article 5 § 3 of
the Convention, the Court considers, in accordance with Article 37 § 1 (a) of the
Convention, that this part of the application shall be struck out.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant further complained that his
requests for release on 9 December 2004 and in April 2005, as well as his
appeals against the detention orders of 27 October and 22 December 2004, 25
January, 7 July and 13 October 2005 and 11 January 2006 had not been
speedily examined by the courts. He further argued that the courts had never
considered the merits of his request for release submitted on 9 December 2004.
He relied on Article 5 § 4 of the Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful.”
A. Submissions by
the parties
The Government argued that the domestic courts
had fully complied with their responsibility to examine speedily the applicant’s
complaints against the detention orders. Referring to the examination of the
proceedings in which the courts had dealt with the applicant’s request for
release submitted on 9 December 2004, they stressed that, having examined the
request for release, the courts had correctly dismissed it as the applicant and
his defence team had not taken the proper avenue for ventilating that
complaint. Under the rules of the criminal procedural law they should have submitted
the request to another court. The Government further explained that the delay
in dealing with the request of 9 December 2004 had resulted from the prosecutor’s
request for a stay of the proceedings or his inability to attend, the failure
to bring the applicant to the courthouse from the detention facility, and the
failure on the part of the applicant’s lawyer to attend a hearing.
The applicant submitted that it had usually
taken the courts between thirty and fifty days to deal with the detention
issue. In his view, the length was excessive and was entirely attributable to
the ineffective actions of the courts. He maintained that the domestic courts
had unlawfully refused to examine his request for release, which had been submitted
prior to the case having been transferred for trial. The Leninskiy District
Court had had full competence to examine the release request, but having
delayed the proceedings, had refused to do so, citing territorial jurisdiction.
B. The Court’s assessment
1. Admissibility
The Court notes that the complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds and that they must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that Article 5 § 4, in
guaranteeing to arrested or detained persons a right to institute proceedings
to challenge the lawfulness of their detention, also proclaims their right,
following such proceedings, to a speedy judicial decision concerning the
lawfulness of their detention and ordering its termination if it proves
unlawful. Although it does not compel the Contracting States to set up a second
level of jurisdiction for the examination of the lawfulness of detention, a
State that institutes such a system must in principle accord to detainees the
same guarantees on appeal as at first instance (see Navarra v. France, 23 November
1993, § 28, Series A no. 273-B, and Toth v. Austria, 12 December
1991, § 84, Series A no. 224). The requirement that a decision be
given “speedily” is undeniably one such guarantee and Article 5 § 4, concerning
issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV).
In this context, the Court also observes that there is a special need for a
swift decision determining the lawfulness of detention in cases where a trial
is pending, because the defendant should benefit fully from the principle of
the presumption of innocence (see Iłowiecki
v. Poland, no. 27504/95, § 76, 4 October 2001).
(b) Application of the general principles to the
present case
i. Appeal against the detention order of 27 October
2004
. The
Leninskiy District Court authorised the applicant’s placement in custody on 27
October 2004. The applicant appealed against that decision and his appeal was examined
by the Vladimir Regional Court on 5 November 2004 (see paragraphs 9-11 above). Accordingly,
the proceedings lasted for approximately a week. Their length does not appear
excessive.
. In
these circumstances, the Court finds that there was no violation of
Article 5 § 4 of the Convention as regards the “speediness” of the review
of the applicant’s placement in custody carried out by the domestic courts.
ii. Remaining
proceedings in which the detention issue was decided
The Court notes that it took the courts a
varying number of days to examine the appeals lodged by the applicant against
the remaining detention orders and his requests for release. These proceedings
ranged from thirty-four days to over five months. In particular, it took the
courts approximately forty days to examine the applicant’s appeal against the
detention order of 22 December 2004 (see paragraphs 12 and 14 above, with the
appeal decision having been issued on 1 February 2005), more than five months
to deal with the request for release lodged by the applicant’s counsel on
9 December 2004 (see paragraphs 15-18 above, with the final decision
having been issued on 17 May 2005); more than a month and a half to examine the
appeal against the decision of 25 January 2005 (see paragraphs 20 and 21 above,
with the appeal decision having been taken on 16 March 2005); more than two
months to consider the request for release in April 2005 (see paragraphs 22-24,
with the final decision having been taken on 28 June 2005); thirty-four
days to dismiss the appeal against the order of 7 July 2005 (see
paragraphs 25-26 above, given that the appeal decision was made on 11 August
2005); and more than forty days each time to deal with the appeals against the
orders of 13 October 2005 and 11 January 2006 (see paragraphs 27-30 above,
noting that the appeal decisions were taken on 23 November 2005 and 7
March 2006, respectively).
The Court has considered the Government’s
argument put forward in respect of the delay allegedly caused by the absence of
the applicant’s lawyer from the hearing at which the courts considered the
request for release submitted on 9 December 2004. Such a delay does not explain
the total length of the proceedings, which lasted for more than five months
(see paragraphs 15-18 above).
The Court further observes that the Government
did not argue that the applicant had caused delays in the remaining sets of
proceedings in which the lawfulness of his detention was being reviewed. They
did not indicate any particular instance where the applicant might have applied
for a stay of those proceedings or might in any other way have caused their delay.
The Court thus concludes that the periods in question cannot be considered
compatible with the “speediness” requirement of Article 5 § 4, especially given
that their duration was entirely attributable to the authorities (see, for example,
Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov,
cited above, §§ 198 and 203; and Rehbock v. Slovenia, no. 29462/95,
§§ 85-86, ECHR 2000-XII, where review proceedings which lasted twenty-three
days were not deemed “speedy”).
There has therefore been a violation of Article
5 § 4 of the Convention on account of the authorities’ failure to comply with
their obligation to afford the applicant a speedy review of the lawfulness of
his detention in the remaining sets of the proceedings.
iii. Request for
release of 9 December 2004
The Court further reiterates the applicant’s
complaint concerning the courts’ failure to examine the merits of a request for
release which his counsel submitted on 9 December 2004, a
month before the applicant was committed to stand trial before the
Frunzenskiy District Court. In this respect, the Court observes that Article 5
§ 4 of the Convention entitles arrested or detained persons to a review bearing
upon the procedural and substantive conditions which are essential for the
“lawfulness”, in Convention terms, of their deprivation of liberty. This means
that the competent court has to examine not only compliance with the procedural
requirements of domestic law but also the reasonableness of the suspicion
underpinning the arrest and the legitimacy of the purpose pursued by the arrest
and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97,
§ 53, 10 October 2000). In order to satisfy the requirements of Article 5
§ 4 of the Convention, a “review of the lawfulness of the applicant’s
detention” must comply with both the substantive and procedural rules of the
national legislation and moreover be conducted in conformity with the aim of
Article 5, namely to protect the individual against arbitrariness (see Keus
v. the Netherlands, 25 October 1990, § 24, Series A no. 185-C).
The Court notes that the request for release was
lodged on 9 December 2004 with the Leninskiy District Court, which had
previously ruled on the issues of his detention. On 14 April 2005 the Leninskiy
District Court discontinued the proceedings, having noted that the matter had
to be dealt with by the Frunzenskiy District Court judge. That decision was
upheld on appeal by the Regional Court. The Government
did not dispute that the lawyer had submitted the request to the Leninskiy
District Court in full compliance with the procedural requirements. However,
the District Court’s failure to respond promptly to the release request created
confusion with the jurisdictional boundaries, which stripped the applicant of
the possibility to have his detention reviewed. The Court therefore considers
that, in the circumstances of the case, the authorities’ failure to review
without delay the lawfulness of the applicant’s detention upon his request for
release on 9 December 2004 (see the Court’s findings to that effect in paragraph
94 above) deprived him of a review of the requisite effectiveness (see Eminbeyli
v. Russia, no. 42443/02, § 68, 26 February
2009, with further references).
. In
such circumstances, having regard to the domestic courts’ express refusals to
examine the issue of the applicant’s continued detention and to take cognisance
of any arguments concerning the lawfulness of his detention, the Court
considers that those decisions did not constitute an adequate judicial response
for the purposes of Article 5 § 4 and that they infringed the applicant’s right
to take proceedings by which the lawfulness of his detention would be decided.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The Court has examined the
other complaints submitted by the applicant. However, having regard to all the
material in its possession, and in so far as those 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 being manifestly ill-founded, pursuant to Article 35 §§ 3
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 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government argued that the applicant had not
submitted any evidence in support of his claim.
The Court reiterates, firstly, that the
applicant cannot be required to furnish any proof of the non-pecuniary damage
he has sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June
2006). It further notes that it has found a number of violations of the
Convention provisions in the present case. In these circumstances, the Court
considers that the applicant’s suffering and frustration, caused by the inhuman
conditions of his detention, cannot be compensated for by a mere finding of a
violation. However, the particular amount claimed appears excessive. Making its
assessment on an equitable basis, it awards the applicant EUR 6,500 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicant also claimed EUR 7,000 for the legal
costs incurred before the domestic courts and the Court. He asked that the
award be paid to his representatives’ bank account.
The Government stressed that although the
applicant had provided the Court with a copy of the agreement for legal
assistance, he had not submitted any evidence showing that the payment had
actually been made.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicant provided the Court
with a copy of a contract for legal representation setting up a fee of EUR 7,000
to be paid to his three lawyers irrespective of the outcome of the proceedings
before the Court. The Government did not argue that the contract was not
enforceable or that it did not impose a legally binding obligation on the
applicant to pay the stipulated fee for legal services to his defence team. It
is clear from the length and detail of the pleadings submitted by the applicant
that a great deal of work was carried out on his behalf. Having regard to the
documents submitted and the rates for the lawyers’ work, the Court is satisfied
that those rates are reasonable. However, the Court
considers that a reduction should be applied to the amount claimed in respect
of legal fees on account of the fact that some of the applicant’s complaints
were either declared inadmissible or no violation was found. In this
connection, regard being had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the applicant EUR 5,000,
together with any tax that may be chargeable to him on that amount, to be paid,
as requested, into his representatives’ bank account as identified by the
applicant.
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. Decides to strike out the complaint under
Article 5 § 3 of the Convention;
2. Declares the complaints concerning the
conditions of detention in a temporary detention facility, the unlawfulness of
detention between 12 January and 13 July 2005, and the lack of speedy and
effective review of the detention matters admissible and the remainder of the
application inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention;
4. Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant’s detention between 12 and
25 January 2005;
5. Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant’s detention between
25 January and 13 July 2005;
6. Holds that there has been no violation of
Article 5 § 4 of the Convention as regards the “speediness” of the review by
the domestic courts of the appeal against the detention order of
27 October 2004;
7. Holds that there has been a violation of
Article 5 § 4 of the Convention as regards the “speediness” of the review by
the domestic courts of the remaining detention orders or requests for release;
8. Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the courts’ failure to consider
the substance of the applicant’s request for release lodged on 9 December
2004;
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, the
following amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR 6,500 (six thousand and five hundred euros)
in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros) in respect of costs and
expenses, to be paid into the representatives’ bank account;
(iii) any tax that may be chargeable
to the applicant on the above amounts;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
10. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
