EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF ROMANOV v. RUSSIA
(Application No. 63993/00)
JUDGMENT <*>
(Strasbourg, 20.X.2005)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Romanov v. Russia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Mr {B.M. Zupancic} <*>, President,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr J. Hedigan,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 1 April 2004 and 29 September
2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 63993/00) 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, Ilya
Eduardovich Romanov ("the applicant"), on 16 October 2000.
2. The applicant, who had been granted legal aid, was
represented by Mr A.A. Rekant, a member of Комитет за Гражданские
Права, a Human Rights NGO based in Moscow. The Russian Government
("the Government") were represented by Mr P.A. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged that the conditions in the psychiatric
ward of the detention facility "Butyrskiy", in which he was
confined for over a year and three months, were incompatible with
Article 3 of the Convention. He alleged that the length of his
detention on remand had been excessive and in breach of Article 5
з 3 of the Convention. He alleged a violation of Article 6 of the
Convention in that he had been denied the right to appear before a
trial court.
4. The application was allocated to the Third Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 1 April 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed Third Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1967. He appears to be currently
detained in Ukraine.
A. The applicant's detention
9. At 8 p.m. on 12 October 1998 the applicant, who was
allegedly in a state of intoxication, was arrested in the street
by a police patrol and taken to a police station. He was then
searched and a certain amount of marijuana was allegedly found on
him.
10. At 12:15 a.m. on 13 October 1998 the applicant was
detained, by a decision of an investigator of the Akademicheskiy
District Police Department of Moscow, on suspicion of illegal
acquisition and possession of drugs. The investigator referred to
the suppression of crime and prevention of the risk of the
applicant's absconding as the reasons for the decision.
11. On the same day the applicant was charged with the illegal
acquisition of drugs for personal consumption and possession.
12. On 15 October 1998 the investigator issued an order to
detain the applicant on remand, which was approved by a public
prosecutor on the same day. The order referred to the applicant's
personality, the danger posed to the public by the crime with
which he had been charged and the risk of his absconding.
13. On 16 October 1998 the applicant was confined in the
detention facility IZ-48/2 "Butyrskiy" in Moscow.
14. By a decision of the investigating authority the applicant
was subjected to a psychiatric examination.
15. On 19 November 1998 he was examined by experts from the
Alekseev Psychiatric Hospital of Moscow. As the experts had
difficulties in reaching conclusions the applicant was placed in
the Serbskiy Forensic Psychiatry Institute in Moscow, which
examined him from 10 December 1998 to 6 January 1999. It was noted
that he had never previously been found to be suffering from a
mental illness. The commission of experts diagnosed the applicant
as suffering from profound dissociative personality disorder
(innate psychopathy) and found that he could not be held
responsible for the offence with which he had been charged. The
experts recommended that the applicant undergo psychiatric
treatment on an out-patient basis at his place of residence.
16. The period of the investigation and the applicant's
detention in custody were extended twice by the public
prosecutor's office, first until 12 January 1999 and later until
12 February 1999.
17. On 10 February 1999 the investigation was completed and the
applicant's criminal case was submitted to the Gagarinskiy
District Court of Moscow.
B. Court proceedings
18. On 28 June 1999 the Gagarinskiy District Court of Moscow
dismissed the applicant's request for release and ordered, while
giving no reasons and no chance for the defence to object, an
additional psychiatric examination. On 23 July 1999 the decision
was upheld by the Moscow City Court on appeal.
19. The applicant's examination by the commission of experts of
the Serbskiy Forensic Psychiatry Institute on 25 August 1999
revealed no significant changes in the applicant's memory,
attention and mental faculties. As the commission was uncertain as
to the state of the applicant's mental health, it recommended he
undergo a second psychiatric examination as an in-patient.
20. The latter was ordered by the District Court on 20
September 1999 and carried out by the Serbskiy Forensic Psychiatry
Institute from 24 November 1999 to 24 December 1999. The
commission of experts found that the applicant suffered from a
psychological disorder in the form of profound dissociative
psychopathy, that he had committed the offence in a deranged state
of mind and that at present he had, inter alia, a perverted
perception of the circumstances relevant to the criminal case
against him and could not give adequate evidence about them. It
was concluded this time that the applicant was in need of
placement in a mental hospital for compulsory treatment.
21. The hearing of the case was adjourned on a number of
occasions because of the failure of duly notified witnesses to
appear. By decisions of 22 February 2000 and 3 March 2000 the
District Court ordered the district police to bring the witnesses
to the court.
22. On 10 March 2000 the District Court again dismissed the
defence's request for the applicant's release, stating as follows:
"Having considered the application [for release], in view of
the nature of the crime committed, the court considers that it
cannot be granted."
23. On the same day the District Court rejected the applicant's
request to appear before the court on the ground that ill
detainees were not transported to court from the detention
facility IZ-48/2.
24. On 3 April 2000 the District Court again dismissed a
request by the applicant's lawyers for the applicant to appear
personally at the hearing in order to give evidence in person and
to be taken to the court for that purpose. The court explained its
decision by reasoning that the statement of a person who had been
legally established as mentally disturbed could not be accepted as
evidence. The District Court also rejected a request by the
applicant's lawyers to carry out an inquiry at the detention
facility IZ-48/2 to clarify why they had refused to transport the
applicant to the court.
25. On 4 April 2000 the District Court examined the case at a
public hearing in the presence of the prosecutor and the
applicant's lawyer. At the hearing the court examined a member of
the commission of experts which had carried out the second in-
patient psychiatric examination of the applicant recommending his
placement in a mental hospital. The applicant's lawyers' request
to examine an expert representing the initial opinion, which had
found the applicant's out-patient treatment at his place of his
residence to be sufficient, was rejected by the court.
26. The court found that at 5 p.m. on 12 October 1998 the
applicant had acquired marijuana for personal consumption and kept
it in his possession until being detained by the police three
hours later. Such actions were punishable under Article 228 з 1 of
the Criminal Code of the Russian Federation. The court noted that,
according to the expert opinion, the applicant had committed the
offence with which he had been charged in a deranged state of mind
and that he was in need of compulsory treatment in a mental
hospital. The court held that the applicant had committed the
offence in a state of diminished responsibility, that he should
therefore not be deemed responsible and that he should be placed
in a mental hospital for compulsory treatment.
27. The applicant's lawyers appealed against the decision on
the grounds of, inter alia, the applicant's absence at the trial
and the resulting failure of the court to examine his personality;
the court's refusal to examine the first expert in order to settle
the inconsistency between the two expert opinions in the case; and
the court's failure to explain why preference was given to the
second opinion. The defence referred to certificates issued by the
detention facility IZ-48/2 showing a positive assessment of the
applicant's behaviour and the satisfactory state of his physical
and mental health. They also pointed out that the applicant was a
good family man and that there was no indication that he had ever
inflicted harm on others.
28. On 25 April 2000 the Moscow City Court dismissed the
applicant's appeal. It stated that it did not find any
inconsistency between the two expert opinions or any reasons for
not giving credence to the second one. The City Court's decision
contains no comments in relation to the applicant's absence at the
trial.
29. On 23 May 2000 the applicant was transferred from the
detention facility IZ-48/2 to the Moscow Psychiatric Hospital No.
7. It appears that he was later transferred to a psychiatric
hospital in Nizhniy Novgorod from which he was discharged on 22
February 2001.
30. On 11 February 2003 the Court communicated the present case
to the Government.
31. On 24 April 2003 the Moscow Public Prosecutor's Office
brought an application for supervisory review of the case before
the Presidium of the Moscow City Court. The prosecutor claimed
that the trial court should have given reasons for ignoring the
first expert opinion and basing its decision to place the
applicant in a mental hospital on the second expert opinion. It
was noted that the applicant's state of health had been
essentially the same at the time of the two psychiatric
examinations and that the expert, who was examined by the court,
had failed to explain why the recommended type of treatment had
been changed, that question never being resolved at the trial.
32. On 5 June 2003 the Presidium of the Moscow City Court
agreed with the arguments advanced by the prosecutor, quashed the
decisions of 4 and 25 April 2000 and remitted the case for a fresh
examination by another composition of judges of the Gagarinskiy
District Court of Moscow.
33. On 9 July 2003 the District Court held a hearing in the
presence of the prosecutor and the applicant's lawyer. The court
held that the applicant had unlawfully acquired and possessed
drugs but that he should not be held criminally responsible since
he had been in a deranged state of mind. The court further held
that no compulsory medical measures should be imposed on the
applicant, who had already undergone treatment following the
court's decision of 4 April 2000.
34. The applicant's lawyer appealed, referring, inter alia, to
the applicant's absence at the first-instance hearing.
35. On 4 September 2003 the Moscow City Court quashed the
decision of 9 July 2003 and discontinued the criminal proceedings
against the applicant pursuant to an Amnesty Act of 26 May 2000.
C. Conditions of detention in the
psychiatric ward of IZ-48/2
36. The applicant was kept in the detention facility IZ-48/2
"Butyrskiy", also referred to as SIZO-2, in Moscow from 16 October
1998 until 23 May 2000.
37. The applicant was first held in a cell under the general
regime. In January 1999, after he had undergone a psychiatric
examination at the Serbskiy Forensic Psychiatry Institute, he was
placed in the psychiatric ward of the detention facility SIZO-2.
1. The applicant's account
(a) Cell No. 404
38. The applicant submitted that he had been held in cell No.
404 for the following approximate periods (give or take two or
three days): from 6 January 1999 until 28 April 1999 and from 24
December 1999 until 25 May 2000.
39. It measured 32 sq. m. It was three metres high with two
windows of 1.7 by 1.7 metres equipped with shutters, which were
made of metal plates five or six centimetres wide welded at an
angle of forty-five degrees so that inmates could not see out of
them and very little light could come in.
40. The cell was dimly lit with one bulb of 40 to 60 watts. The
temperature in winter was about 15 to 16 degrees centigrade.
41. There was, however, a hot water supply, and the inmates
received soap from preachers who regularly visited the cell.
42. A 15- or 20-minute shower was allowed only once a week.
43. Outdoor walks in exercise areas on the roof of the prison
building did not exceed 30 to 40 minutes per day.
44. The cell contained 24 bunk beds and held up to 26 inmates.
45. The applicant and other inmates did not often have
individual bedding. Thus, on his arrival the applicant was given
neither individual bedding nor eating utensils. He went on a
hunger strike and lodged a complaint with the Ministry of Justice.
Only four days later mattresses, bed linen and eating utensils
were given to him and his cell mates.
(b) Cell No. 415
46. On 28 April 1999 the applicant was put in cell No. 415
where he stayed until September 1999.
47. The cell, measuring 11.25 sq. m, was three metres high and
had one window measuring 2.9 sq. m equipped with metal shutters of
the same type as in cell No. 404. The cell contained six bunk beds
and held between three and five inmates.
48. The summer of 1999 in Moscow was extremely hot. While the
temperature outside was 40 degrees centigrade, in the cell it
probably reached 50 degrees centigrade. The metal shutters heated
up and glowed. To let air in the prison authorities kept a small
opening in the cell door, designed to pass food to prisoners, open
for an hour in the evenings, but it did not help.
49. During the period of the applicant's detention in the cell
it was disinfected only once.
(c) Cell No. 408
50. At the beginning of September 1999 the applicant was
transferred to cell No. 408 which was similar to cell No. 404
except that the windows were equipped, in addition to the metal
shutters, with a metal construction resembling a cage which
prevented inmates from approaching the window.
51. On 24 November 1999 the applicant was sent to the Serbskiy
Forensic Psychiatry Institute for a second psychiatric examination
and then, a month later, transferred back to cell No. 404.
(d) General observations
52. Detainees received extremely poor medical care. For the
whole period of the applicant's confinement in the psychiatric
ward of the Butyrskiy detention facility he was never examined by
a psychiatrist. In May - June 1999 the applicant fell ill with
cold. His repeated requests for medical assistance were left
unanswered for almost a month. Medical help was provided only
after he had threatened to go on hunger strike. The applicant was
twice infected with pediculosis. According to the report of the
Serbskiy Forensic Psychiatry Institute of 25 August 1999, at the
time of his detention the applicant was diagnosed as having
scabies. The applicant alleged that his health had deteriorated as
a result of the conditions of his detention.
53. The applicant repeatedly observed the beating of mentally
ill detainees by their cell mates or the prison guards.
54. The cells were never inspected by the health authority.
There was no proper ventilation. Food was of poor quality and not
sufficient.
55. Approximately once a month prison guards conducted a search
for prohibited objects, as a result of which many belongings of
the detainees were stolen.
56. The choice of books was very poor.
2. The Government's account
57. According to the Government's observations of 21 June 2004,
based on information provided by the head of the detention
facility SIZO-2 and the health authority, the applicant was kept
in three different cells described as follows: cell No. 415, from
25 April 1999 to 9 September 1999 (14.8 sq. m, 3.5 m. high, 1
window, 4 bunk beds, a lavatory, a wash stand, central cold-water
supply, natural ventilation through a window); cell No. 408, from
9 September 1999 to 19 January 2000 (34.9 sq. m, 3.5 m. high, 2
windows, 9 bunk beds, a lavatory, a wash stand, central cold-water
supply, natural ventilation through windows); cell No. 404, from
19 January 2000 to 23 May 2000 (35.6 sq. m, 3.5 m. high, 2
windows, 10 bunk beds, a lavatory, a wash stand, central cold-
water supply, natural ventilation through windows).
58. According to the Government's letter of 24 December 2004,
from 10 January 1999 until 23 May 2000 the applicant was detained
in cell No. 408 and cell No. 415.
59. The Government acknowledged that the cells were
overcrowded. During the period of the applicant's detention cell
No. 408 contained 22 bunk beds and held up to 35 inmates
(according to the letter of 24 December 2004 mentioned above).
60. Windows in the cells, measuring 1.1 m. by 1.15 m., were
equipped with metal bars and window panes with wooden frames. The
Government submitted that no metal shutters were installed on
them. A reference was made to a report on the examination of the
cells by the health authority on 11 May 2004 and the following
statement by the head of SIZO-2 dated 11 May 2004:
"... None of the windows in the above-mentioned cells [cells
404, 408 and 415] has shutters on them."
61. The authorities ran daily inspections of the technical
conditions of the cells in order to ensure, in particular, that
the windows had panes in them and bulbs were changed. Any damage
was repaired in the shortest time possible. The cells were
regularly inspected by the health authority, which checked that
the heating, ventilation and lighting of the cells complied with
the established requirements. The relevant records did not contain
any indications of a violation of the above requirements.
62. The applicant had had outdoor walks for at least an hour
per day. The inmates of each cell had walks in turn. There were
several exercise areas on the roof of the building of the
detention facility. Their size varied from 10.4 sq. m to 52.8 sq.
m depending on the number of detainees kept in a cell.
63. Three hot meals were served daily. The applicant had also
been able to buy food in the prison shop and receive food parcels
from relatives.
64. As regards preventive measures against infectious diseases,
on admission to the facility detainees underwent a medical
examination and hygiene treatment. At least once a week they took
a shower lasting not less than 15 minutes and had their bedding
changed.
65. The applicant and other detainees had received proper
medical care, including specialist treatment. Those infected with
scabies were isolated. During the period of the applicant's
detention, no mass infectious diseases had been recorded and the
health authority had not been notified of any emergency cases of
scabies or pediculosis. The medical personnel of the detention
facility had to undertake daily rounds of the cells. Medical
assistance could be provided in the in-patient unit of the
facility or, where necessary, in other medical institutions of the
penitentiary system or public hospitals.
66. Medical records of detainees concerning the period of the
applicant's detention were destroyed on the expiry of a maximum
period for keeping them. The records containing information on the
number of detainees kept in the cells at the same time as the
applicant had been destroyed as well, as the statutory one-year
period for keeping them had expired.
II. Relevant domestic law
A. Code of Criminal Procedure of 1960
(in force at the material time)
1. Detention on remand
Article 11 (1). Personal inviolability
"No one may be arrested otherwise than on the basis of a
judicial decision or a prosecutor's order."
Article 89 (1). Application of preventive measures
"When there are sufficient grounds for believing that an
accused person may evade an inquiry, preliminary investigation or
trial or will obstruct the establishment of the truth in a
criminal case or will engage in criminal activity, as well as in
order to secure the execution of a sentence, the person conducting
the inquiry, the investigator, the prosecutor and the court may
apply one of the following preventive measures in respect of the
accused: a written undertaking not to leave a specified place, a
personal guarantee or a guarantee by a public organisation, or
placement in custody."
Article 92. Order and decision on the application of a
preventive measure
"On the application of a preventive measure a person conducting
an inquiry, an investigator and a prosecutor shall make a reasoned
order, and a court shall give a reasoned decision specifying the
criminal offence which the individual concerned is suspected of
having committed, as well as the grounds for choosing the
preventive measure applied. The order or decision shall be
notified to the person concerned, to whom at the same time the
procedure for appealing against the application of the preventive
measure shall be explained.
A copy of the order or decision on the application of the
preventive measure shall be immediately handed to the person
concerned."
Article 96. Placement in custody
"Placement in custody as a preventive measure shall be done in
accordance with the requirements of Article 11 of this Code
concerning criminal offences for which the law prescribes a
penalty in the form of deprivation of freedom for a period of more
than one year. In exceptional cases, this preventive measure may
be applied in criminal matters for which a penalty in the form of
deprivation of freedom for a period of less than one year is
prescribed by law."
Article 97. Time-limits for pre-trial detention
"A period of detention during the investigation of offences in
criminal cases may not last longer than two months. This time-
limit may be extended by up to three months by a district or
municipal prosecutor... if it is impossible to complete the
investigation and there are no grounds for altering the preventive
measure. A further extension of up to six months from the day of
placement in custody may be effected only in cases of special
complexity by a prosecutor of a constituent part of the Russian
Federation...
An extension of the time-limit for such detention beyond six
months shall be permissible in exceptional cases and solely in
respect of persons accused of committing serious or very serious
criminal offences. Such an extension shall be effected by a deputy
of the Prosecutor General of the Russian Federation (up to one
year) and by the Prosecutor General of the Russian Federation (up
to 18 months).
No further extension of the time-limit shall be permissible,
and the accused held in custody shall be releasable immediately.
The documents of a completed investigation in a criminal case
shall be produced for consultation by the accused and his defence
counsel not later than one month before the expiry of the maximum
time-limit for remand in custody, as prescribed in the second
paragraph of the present Article. In the event of the accused
being unable to consult the case documents before the expiry of
the maximum time-limit for remand in custody, the Prosecutor
General of the Russian Federation, [or] a prosecutor of a
constituent part of the Russian Federation... may, not later than
five days before the expiry of the maximum time-limit for remand
in custody, apply to the judge of the "oblast", "krai" or
comparable court for an extension of this time-limit.
Not later than five days from the day of receipt of the
application, the judge must take one of the following decisions:
1. to extend the time-limit for remand in custody until the
accused and his counsel have consulted the case documents and the
case has been referred to the trial court by the prosecutor but,
anyway, for not more than six months;
2. to reject the prosecutor's application and to release the
person concerned from custody.
Under the same procedure, the time-limit for remand in custody
may be extended, if necessary, to accede to a request by the
accused or his counsel to pursue the preliminary investigation
further.
If a court remits a case for further investigation when the
time-limit for the accused's remand in custody has expired, but
the circumstances of the case preclude any modification of the
custody measure, the time-limit for the remand in custody shall be
extended by the prosecutor supervising the investigation for up to
one month from the date on which the case reaches him. Any further
extension of the time-limit shall take account of the time spent
by the accused in custody before the referral of the case to
court, and shall be effected in the manner and within the limits
prescribed in the first and second paragraphs of this Article.
An extension of the time-limit for remand in custody in
accordance with the present Article is subject to appeal to a
court and to judicial review of its legality and justification
under the procedure provided for in Articles 220.1 and 220.2 of
the present Code."
Article 101. Cancellation or modification of a preventive
measure
"A preventive measure shall be cancelled when it ceases to be
necessary, or else changed into a stricter or a milder one if the
circumstances of the case so require. The cancellation or
modification of a preventive measure shall be effected by a
reasoned order of the person carrying out the inquiry, the
investigator or the prosecutor, or by a reasoned court decision
after the case has been transferred to a court.
The cancellation or modification, by the person conducting the
inquiry or by the investigator, of a preventive measure chosen on
the prosecutor's instructions shall be permissible only with the
prosecutor's approval."
Article 223-1. Setting a date for a court hearing
"If the accused is kept in custody, the question of setting a
date for a court hearing must be decided no later than 14 days
from the seizure of the court."
Article 239. Time-limits for examination of the case
"The examination of a case before the court must start no later
than 14 days from the fixing of a hearing date."
2. Proceedings concerning the commission of offences
by persons of unsound mind
Article 407. Preparatory actions for court hearing
"... A trial court may summon to a hearing a person whose case
is being examined unless that person's illness prevents him from
appearing before the court..."
Article 409. Determination of case by court
"A trial court determines a case by its decision... When
rendering the decision the court shall determine the following
questions:
1. whether an act posing a danger to the public and punishable
under the criminal law has occurred;
2. whether the act has been committed by the person whose
criminal case is being examined;
3. whether the person has committed the act in a deranged state
of mind;
4. whether the person, after committing the offence, has
developed a mental illness which makes it impossible for him to be
conscious of or control his actions and whether such illness
represents a temporary mental disorder merely requiring an
adjournment of the proceedings;
5. whether a compulsory medical measure should be applied and
which specific measure should be applied."
Article 410. Court decision
"Having found it established that an act posing a danger to the
public and punishable under the criminal law has been committed by
a person in a deranged state of mind,... the court shall render a
decision... by which the person is deemed not to be criminally
responsible... and is ordered to undergo a specific compulsory
medical measure, or [the court shall render a decision by which]
the proceedings are terminated and the person is not ordered to
undergo any compulsory medical measure where that person does not
pose any danger to the public on account of the offence he has
committed or his state of health, which does not call for
compulsory treatment. ..."
B. Criminal Code of 1996
Article 99. Compulsory medical measures
"1. The court may impose the following compulsory medical
measures:
a) out-patient compulsory psychiatric observation and
treatment;
b) compulsory psychiatric treatment in a mental hospital of a
common type;
c) compulsory psychiatric treatment in a mental hospital of a
special type;
d) compulsory psychiatric treatment in a mental hospital of a
special type under close supervision. ..."
III. Relevant council of Europe documents
The relevant extracts from the General Reports by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
"46. Overcrowding is an issue of direct relevance to the CPT's
mandate. All the services and activities within a prison will be
adversely affected if it is required to cater for more prisoners
than it was designed to accommodate; the overall quality of life
in the establishment will be lowered, perhaps significantly.
Moreover, the level of overcrowding in a prison, or in a
particular part of it, might be such as to be in itself inhuman or
degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education,
sport, etc.) is of crucial importance for the well-being of
prisoners... [P]risoners cannot simply be left to languish for
weeks, possibly months, locked up in their cells, and this
regardless of how good material conditions might be within the
cells. The CPT considers that one should aim at ensuring that
prisoners in remand establishments are able to spend a reasonable
part of the day (8 hours or more) outside their cells, engaged in
purposeful activity of a varied nature...
48. Specific mention should be made of outdoor exercise. The
requirement that prisoners be allowed at least one hour of
exercise in the open air every day is widely accepted as a basic
safeguard... It is also axiomatic that outdoor exercise facilities
should be reasonably spacious...
49. Ready access to proper toilet facilities and the
maintenance of good standards of hygiene are essential components
of a humane environment...
50. The CPT would add that it is particularly concerned when it
finds a combination of overcrowding, poor regime activities and
inadequate access to toilet/washing facilities in the same
establishment. The cumulative effect of such conditions can prove
extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain
reasonably good contact with the outside world. Above all, a
prisoner must be given the means of safeguarding his relationships
with his family and close friends. The guiding principle should be
the promotion of contact with the outside world; any limitations
upon such contact should be based exclusively on security concerns
of an appreciable nature or resource considerations..."
Extracts from the 7th General Report [CPT/Inf (97) 10]
"13. As the CPT pointed out in its 2nd General Report, prison
overcrowding is an issue of direct relevance to the Committee's
mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison
entails cramped and unhygienic accommodation; a constant lack of
privacy (even when performing such basic tasks as using a sanitary
facility); reduced out-of-cell activities, due to demand
outstripping the staff and facilities available; overburdened
health-care services; increased tension and hence more violence
between prisoners and between prisoners and staff. This list is
far from exhaustive.
The CPT has been led to conclude on more than one occasion that
the adverse effects of overcrowding have resulted in inhuman and
degrading conditions of detention..."
Extracts from the 11th General Report [CPT/Inf (2001) 16]
"28. The phenomenon of prison overcrowding continues to blight
penitentiary systems across Europe and seriously undermines
attempts to improve conditions of detention. The negative effects
of prison overcrowding have already been highlighted in previous
General Reports...
29. In a number of countries visited by the CPT, particularly
in central and eastern Europe, inmate accommodation often consists
of large capacity dormitories which contain all or most of the
facilities used by prisoners on a daily basis, such as sleeping
and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation
arrangements in closed prisons and those objections are reinforced
when, as is frequently the case, the dormitories in question are
found to hold prisoners under extremely cramped and insalubrious
conditions... Large-capacity dormitories inevitably imply a lack
of privacy for prisoners in their everyday lives... All these
problems are exacerbated when the numbers held go beyond a
reasonable occupancy level; further, in such a situation the
excessive burden on communal facilities such as washbasins or
lavatories and the insufficient ventilation for so many persons
will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal
shutters, slats, or plates fitted to cell windows, which deprive
prisoners of access to natural light and prevent fresh air from
entering the accommodation. They are a particularly common feature
of establishments holding pre-trial prisoners. The CPT fully
accepts that specific security measures designed to prevent the
risk of collusion and/or criminal activities may well be required
in respect of certain prisoners... [E]ven when such measures are
required, they should never involve depriving the prisoners
concerned of natural light and fresh air. The latter are basic
elements of life which every prisoner is entitled to enjoy..."
THE LAW
I. Alleged violation of Article 3 of the Convention
67. The applicant complained about his conditions of detention
in the psychiatric ward of the detention facility IZ-48/2
"Butyrskiy". He relied on Article 3 of the Convention, which
provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
68. The Government acknowledged that the detention facility had
been overcrowded. They submitted that a series of legislative,
financial and other measures had been carried out in order to
bring conditions of detention into compliance with domestic and
international standards. As a result, at present the number of
persons detained in the detention facility IZ-48/2 was half the
number in 1998. As of 11 May 2004 there had been 308 detainees in
the psychiatric ward of the detention facility in issue, which had
a limit of 275 persons.
69. The Government pointed out that the authorities had had no
intention of subjecting the applicant to inhuman or degrading
treatment or of harming his health.
70. The applicant maintained his initial complaint.
A. Principles established by the Court's case-law
71. As the Court has held on many occasions, Article 3 of the
Convention enshrines one of the most fundamental values of
democratic society. It prohibits in absolute terms torture or
inhuman or degrading treatment or punishment, irrespective of the
circumstances and the victim's behaviour (Labita v. Italy,
judgment of 6 April 2000, Reports of Judgments and Decisions 2000-
IV, з 119). However, to fall under Article 3, ill-treatment must
attain a minimum level of severity. The assessment of this minimum
level of severity is relative; it depends on all the circumstances
of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of
health of the victim ({Valasinas} v. Lithuania, No. 44558/98, зз
100 - 101, ECHR 2001-VIII).
72. The Court has consistently stressed that the suffering and
humiliation involved must in any event go beyond the inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Under the Convention provision
in question the State must ensure that a person is detained in
conditions which are compatible with respect for his human
dignity, that the manner and method of the execution of the
measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health
and well-being are adequately secured ({Valasinas}, cited above, з
102; {Kudla} v. Poland [GC], No. 30210/96, з 94, ECHR 2000-XI).
When assessing conditions of detention, account has to be taken of
their cumulative effects as well as the applicant's specific
allegations (Dougoz v. Greece, No. 40907/98, з 46, ECHR 2001-II).
B. Application of the above principles to the present case
73. In the present case the applicant was held in the
psychiatric ward of the detention facility IZ-48/2 "Butyrskiy" in
Moscow, also referred to as SIZO-2. The Court assumes from the
parties' submissions that the period of the applicant's detention
in the above facility lasted from 10 January 1999 until 23 May
2000, excluding one month from 24 November to 24 December 1999
when he was at the Serbskiy Forensic Psychiatry Institute, that
is, a total of a year, three months and thirteen days (see
paragraphs 20, 38, 46, 50, 51, 57 and 58 above).
74. As regards the time spent in different cells, the
applicant's submissions indicate that he spent about eleven and a
half months in cells Nos. 404 and 408, which both measured over 30
sq. m, and about four months in cell No. 415 measuring less than
15 sq. m. The Government first asserted that the applicant had
been held in a smaller cell, No. 415, for four and a half months
and in two bigger cells, Nos. 408 and 404, for the rest of the
time. However, no information was given in relation to the period
between January and April 1999 (see paragraph 57 above). Later,
the Government claimed that for the whole period of his
confinement in the psychiatric ward the applicant had been held in
cells 408 and 415. No information on how long he was held in each
was provided (see paragraph 58 above).
75. Having regard to the above information of the parties, the
Court will proceed on the assumption that the applicant was held
in a smaller cell for about four and a half months and in a larger
cell for eleven months.
76. The Court will first examine the conditions of detention in
the bigger cell. The cell was 3 to 3.5 metres high and measured 32
sq. m, according to the applicant and 34.9 or 35.6 sq. m,
according to the Government. Given the number of bunk beds, it was
designed for 24 persons according to the applicant and 22 persons
according to the Government (see paragraphs 44 and 59 above). It
actually held up to 26 inmates according to the applicant and up
to 35 inmates according to the Government (see paragraphs 44 and
59 above). The above numbers suggest that at any given time there
was between 1 and 1.6 sq. m of space per inmate in the applicant's
cell and that he did not always have a separate bed. Save for 30
to 40 minutes, according to the applicant, or one hour, according
to the Government, of daily outdoor walks in exercise areas on the
roof of the prison building, the applicant was confined to his
cell for all the time.
77. The applicant's situation is comparable with that in the
Kalashnikov case, in which the applicant had been confined to a
space measuring 0.9 - 1.9 sq. m. In that case the Court held that
such a severe overcrowding raised in itself an issue under Article
3 of the Convention (Kalashnikov v. Russia, No. 47095/99, зз 96 -
97, ECHR 2002-VI). In the Peers case even a much bigger cell -
namely that of 7 sq. m for two inmates - was noted as a relevant
aspect for finding a violation of Article 3, albeit in that case
the space factor was coupled with the established lack of
ventilation and lighting (Peers v. Greece, No. 28524/95, зз 70 -
72, ECHR 2001-III). By contrast, in some other cases no violation
of Article 3 was found, as the restricted space in the sleeping
facilities was compensated by the freedom of movement enjoyed by
the detainees during the day-time ({Valasinas}, cited above, зз
103 and 107; Nurmagomedov v. Russia (dec.), No. 30138/02, 16
September 2004).
78. Hence, as in those cases, the Court considers the extreme
lack of space to be the focal point for its analysis of
compatibility of the conditions of the applicant's detention with
Article 3.
79. The Court observes further that as regards the applicant's
medical care and other conditions of his detention, including
heating, artificial lighting and ventilation, for the most part
neither party submitted evidence which could satisfy the Court
"beyond reasonable doubt" in whether they were acceptable from the
point of view of Article 3. What can be taken into account,
however, is that the applicant appears to have been allowed to
take a shower once a week (see paragraphs 42 and 64 above) and
that he became infected with scabies (see paragraph 52 above). The
Court also notes the applicant's assertion that, in addition to
the usual bars, there were metal shutters on the windows, which
were constructed so that inmates could not see out of them and
very little light could come in (see paragraphs 39 and 50 above).
The Government did not initially contest this allegation. After
the admissibility decision in the case they submitted that no
metal shutters had been installed on the windows. A reference was
made to a report on the inspection of the cells by the health
authority on 11 May 2004 and the following statement by the head
of SIZO-2 dated 11 May 2004:
"... None of the windows in the above-mentioned cells [cells
404, 408 and 415] has shutters on them."
The applicant submitted that these metal shutters had been
removed throughout the "Butyrskiy" detention facility at the end
of 2002 and that the Government's information reflected the
situation as of 2004. The Government did not object in reply.
80. The Court accepts that in the present case there is no
indication that there was a positive intention of humiliating or
debasing the applicant. However, although the question whether the
purpose of the treatment was to humiliate or debase the victim is
a factor to be taken into account, the absence of any such purpose
cannot exclude a finding of violation of Article 3 (see Peers,
cited above).
81. The Court considers that the conditions of detention, which
the applicant had to endure for at least eleven months, must have
undermined the applicant's human dignity and aroused in him
feelings of humiliation and debasement. Whilst the Court notes
with satisfaction that at present the number of persons detained
in the "Butyrskiy" detention facility is half that in 1998 as a
result of various measures aimed at bringing the conditions of
detention into compliance with domestic and international
standards, this does not detract from the wholly unacceptable
conditions which the applicant had clearly had to endure at the
material time.
82. The Court does not find it necessary to examine further the
conditions of the applicant's detention in cell No. 415 as the
above considerations are sufficient to find a violation of Article
3 of the Convention.
83. In the light of the above, the Court finds that the
applicant's conditions of detention, in particular the severe
overcrowding and its detrimental effect on the applicant's well-
being, combined with the length of the period during which the
applicant was detained in such conditions, amounted to degrading
treatment.
84. Accordingly, there has been a violation of Article 3 of the
Convention.
II. Alleged violation of Article 5 з 3 of the Convention
85. The applicant complained that his detention on remand had
been excessive. He alleged a violation of Article 5 з 3 of the
Convention, the relevant part of 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."
86. The Government denied this violation.
A. Period to be taken into consideration
87. The Court reiterates that, in determining the length of
detention pending trial under Article 5 з 3 of the Convention, the
period to be taken into consideration begins on the day the
accused is taken into custody under Article 5 з 1 (c) and ends on
the day when the charge is determined, even if only by a court of
first instance (see, among other authorities, Wemhoff v. Germany,
judgment of 27 June 1968, Series A No. 7, p. 23, з 9, and Labita,
cited above, з 147).
88. The Court consequently finds that the period to be taken
into consideration in the present case began on 13 October 1998,
when the applicant was detained on suspicion of having committed
the offence, and ended on 4 April 2000, when the Gagarinskiy
District Court of Moscow determined the charge against him. The
period in issue therefore amounted to a year, five months and
twenty-three days.
B. Reasonableness of the length of detention
1. Principles established by the Court's case-law
89. The Court reiterates that the question of whether or not a
period of detention is reasonable cannot be assessed in the
abstract. Whether it is reasonable for an accused to remain in
detention must be examined in each case according to its special
features. Continued detention can be justified in a given case
only if there are specific 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, {Kudla}, cited above, з 110).
90. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial
detention of an accused person does not exceed a reasonable time.
To this end they must, paying due regard to the principle of the
presumption of innocence, examine all the facts arguing for or
against the existence of the above-mentioned requirement of public
interest justifying a departure from the rule in Article 5, and
must set them out in their decisions on the applications for
release. It is essentially on the basis of the reasons given in
these decisions, and any well-documented 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 з 3 (see,
for example, Labita, cited above, з 152). Arguments for and
against release must not be "general and abstract" (see Clooth v.
Belgium, judgment of 12 December 1991, Series A No. 225, p. 16, з
44).
91. The persistence of a reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the lawfulness of the continued detention, but after a certain
lapse of time it no longer suffices. The Court must then establish
whether the other grounds given by the judicial authorities
continued to justify the deprivation of liberty. Where such
grounds were "relevant" and "sufficient", the Court must also be
satisfied that the national authorities displayed "special
diligence" in the conduct of the proceedings. The complexity and
special characteristics of the investigation are factors to be
considered in this respect (see, for example, Scott v. Spain,
judgment of 18 December 1996, Reports 1996-VI, pp. 2399-00, з 74,
and I.A. v. France, judgment of 23 September 1998, Reports 1998-
VII, p. 2978, з 102).
2. Application of the above principles to the present case
(a) Grounds for detention
92. The Court observes that in the instant case the reasons for
the applicant's detention on 13 October 1998 referred to by the
authorities were the suppression of a crime of which the applicant
was suspected and the risk of his absconding (see paragraph 10
above). The latter factor, together with the applicant's
personality and the danger posed to the public by the crime with
which he had been charged, underpinned the decision to place the
applicant in detention on remand on 15 October 1998 (see paragraph
12 above). Subsequently the Gagarinskiy District Court of Moscow,
in refusing to release the applicant, relied on "the nature of the
crime committed" by him (see paragraph 22 above) by which it
appears the District Court meant the seriousness of the charge
against the applicant.
93. The Court reiterates first that the danger of absconding
cannot be gauged solely on the basis of the severity of the
sentence risked; 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 Tomasi v. France, judgment of
27 August 1992, Series A No. 241-A, p. 37, з 98). In the present
case the investigating authority failed to mention any factual
circumstances capable of showing the existence of the danger of
the applicant's absconding. Nor did it explain in its decision
what peculiarities of the applicant's personality warranted, in
its view, his detention on remand.
94. As regards the danger posed to the public by the crime with
which the applicant had been charged, namely the acquisition of
drugs for personal consumption and possession, even assuming that
there was a risk of prejudice to public order at the beginning,
which does not appear in itself a persuasive consideration in the
circumstances of the present case, it must have disappeared after
a certain time (see Tomasi, cited above, p. 36, з 91). This reason
undoubtedly did not suffice to justify the applicant's detention
for more than a year.
95. The Court considers further that the reference by the
District Court to the seriousness of the alleged offence as the
only ground for the applicant's continued detention after he had
spent a year and almost five months in custody could not justify
such a long period of pre-trial detention (see, for example,
Scott, cited above, p. 2401, з 78).
96. The Court accordingly concludes that the reasons relied on
by the investigating authority and the court in their decisions
were not sufficient to justify the applicant's being held in
detention for the period in question.
(b) Conduct of the proceedings
97. According to the applicant, the case was not at all
complex, involving only one charge against him. Thus, the
investigation in the case had been completed as early as 10
February 1999. The two in-patient psychiatric examinations had
lasted not more than two months. The adjournment of hearings in
the case had not been attributable to the applicant's
representatives as they had not been informed of the hearings
concerned. As regards the hearings adjourned on account of the
failure of witnesses to appear, no proper steps had been taken to
execute the court's decisions that they be brought to the court.
98. The Government acknowledged that, when ordering the
applicant's second psychiatric examination on 28 June 1999, the
court had failed to give reasons for its decision. The Government
further asserted that the length of the applicant's detention had
been partially due to the applicant's psychiatric examinations.
The Government also submitted that the hearings in the case had
been repeatedly adjourned because of the failure of the
applicant's representatives and witnesses to appear.
99. The Court observes that it took the police four months to
investigate the case. During that time the applicant underwent a
psychiatric examination which found that he had committed the
crime imputed to him in a deranged state of mind and that he did
not need to be placed in a mental asylum, the out-patient
psychiatric treatment being sufficient for his diagnosis. The
Court observes further that on 28 June 1999, after four months had
elapsed since the case was transferred to it, the Gagarinskiy
District Court of Moscow, without seeing the applicant and without
giving the defence a chance to object, decided to order a further
psychiatric examination of the applicant. No reasons were advanced
for such a decision. The second in-patient psychiatric examination
was carried out four months after the above decision had taken
effect and took a month. Three more months elapsed before the
court examined the case. The Court notes that no evidence was
submitted by the Government on which to contest the applicant's
statements that his representatives had not been informed of the
hearings which were adjourned on the ground of their failure to
appear and that no steps had been taken to bring before the court
the witnesses who had repeatedly failed to appear, thus
protracting the proceedings.
100. The Court concludes that the length of the proceedings is
attributable neither to the complexity of the case nor to the
conduct of the applicant but to the lack of diligence and
expedition on the part of the Gagarinskiy District Court of
Moscow.
(c) Conclusion
101. In view of the above considerations the Court finds that
there has been a violation of Article 5 з 3 of the Convention.
III. Alleged violation of Article 6 of the Convention
102. The applicant complained that, despite his numerous
requests, he had never appeared before the Gagarinskiy District
Court of Moscow. He alleged a violation of Article 6 з 1 of the
Convention.
103. The Court considers that this complaint falls to be
examined under Article 6 зз 1 and 3 (c) of the Convention, which,
insofar as relevant, provides:
"1. In the determination of... any criminal charge against him,
everyone is entitled to a fair and public hearing... by [a]...
tribunal...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(c) to defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of
justice so require;..."
A. The parties' submissions
104. The applicant submitted that the trial court's reference
to the refusal of the detention facility IZ-48/2 to bring him to
court had not been based on true facts. Another reason advanced by
the court for rejecting his request to appear at the hearing had
been his criminal incapacity, which had allegedly made it
impossible to accept his testimony as evidence. The applicant
argued that such reasoning ran counter to the domestic law and
that it had never been established before the decision of the
Gagarinskiy District Court of Moscow of 4 April 2000 that he had
been mentally disturbed or that he could not be held criminally
responsible on account of his mental illness. He contended that it
had been for the District Court to decide, inter alia, on his
mental condition on the basis of all the evidence in the case and
not merely the expert opinion. The applicant further pointed out
that the certificates issued by the detention facility IZ-48/2 had
given a positive assessment of his behaviour and stated that his
physical and mental health was satisfactory.
105. The Government submitted that the decision of the
Gagarinskiy District Court of Moscow not to summon the applicant
had been based on the expert opinion according to which the
applicant had not been conscious of, and could not control, his
actions or perceive the circumstances relevant to the case and
give evidence on them. The Government stated that the above
decision of the District Court had been in compliance with Article
407 of the Code of Criminal Procedure, which left the question of
the appearance of a mentally ill offender before the court to the
latter's discretion. Such a person enjoyed lesser procedural
rights than an ordinary accused. The Government further argued
that the applicant's absence from the court hearings had not
adversely affected his rights, since his lawyers had been present.
B. The Court's assessment
106. The Court reiterates that it flows from the notion of a
fair trial that a person charged with a criminal offence should,
as a general principle, be entitled to be present and participate
effectively in the first-instance hearing (see Colozza v. Italy,
judgment of 12 February 1985, Series A No. 89, pp. 14 - 15, зз 27
and 29). In the present case this requirement was not satisfied
since the District Court decided the applicant's case in his
absence. It should be noted that he was not present at the appeal
hearing either. The Court will next consider whether the instant
case involved any circumstances which were capable of justifying a
complete and irreparable loss of the entitlement to take part in
the hearing.
107. The Court notes that it is not here concerned with an
accused who expressly waived his right to appear at the hearing.
On the contrary, the applicant, who was in custody, and his
lawyers filed requests with the District Court for him to appear
at the hearings in person. The requests were rejected because the
detention facility, in which the applicant was held, did not
allegedly transport ill detainees to court and, on another
occasion, because the testimony of a mentally disturbed person
could not be accepted as evidence (see paragraphs 23 and 24
above).
108. The Court recalls that the State is under an obligation to
secure the attendance of an accused who is in custody (see, with
necessary changes made, Goddi v. Italy, judgment of 9 April 1984,
Series A No. 76, p. 11, з 29). The Court reiterates further that
the trial court may exceptionally continue hearings where the
accused is absent on account of illness, provided that his or her
interests are sufficiently protected (see Ninn-Hansen v. Denmark
(dec.), No. 28972/95, p. 351, ECHR 1999-V). However, where
proceedings involve an assessment of personality and character of
the accused and his state of mind at the time of the offence and
where their outcome could be of major detriment to him, it is
essential to the fairness of the proceedings that he be present at
the hearing and afforded the opportunity to participate in it
together with his counsel (see Kremzow v. Austria, judgment of 21
September 1993, Series A No. 268-B, p. 45, з 67; Pobornikoff v.
Austria, No. 28501/95, з 31, 3 October 2000, and Zana v. Turkey,
judgment of 25 November 1997, Reports 1997-VII, p. 2551, зз 71 -
73).
109. In the present case the authorities failed to take any
steps to secure the applicant's attendance at the hearings. There
is no indication that the applicant displayed any disturbed
behaviour or that his physical and mental condition otherwise
precluded him from appearing before the court. The District
Court's argument that the applicant's presence at the hearing was
not required in that the testimony of the applicant as a mentally
disturbed person could not be accepted as evidence is striking
given that it was for the District Court to determine for the
first time whether the applicant had committed the offence in a
deranged state of mind and assess whether his mental condition
required any compulsory medical care.
110. As regards the scope of the trial court's powers in this
case, the Court further observes that the District Court
determined the criminal charge against the applicant, found that
he could not be held responsible because he was suffering from a
mental illness and ordered his placement in a mental hospital.
111. As regards the latter, the Court notes that the District
Court had before it two psychiatric opinions drawn up by the same
forensic institution. Although concurring in essence on the
applicant's diagnosis, they differed on the measures it
necessitated. The first opinion asserted that there was no need to
place the applicant in a mental asylum and that psychiatric
treatment as an out-patient would suffice, while the second
opinion claimed that the applicant's confinement in a mental
asylum was necessary. The Court considers that such an
inconsistency, which had an impact on the outcome of the
proceedings and, ultimately, in the present case, on the
applicant's liberty, made the question of the applicant's
participation in the hearing particularly important.
112. In view of what was at stake for the applicant the
District Court could not, if the trial was to be fair, determine
his case without a direct assessment of the applicant's evidence,
and the presence of the applicant's lawyer could not compensate
for his absence.
113. In view of the above considerations the Court finds a
breach of Article 6 зз 1 and 3 (c) of the Convention.
IV. Application of Article 41 of the Convention
114. 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. Non-pecuniary damage
115. The applicant claimed 100,000 euros ("EUR") in respect of
non-pecuniary damage. He underlined the point that he had spent a
long time in the inhuman conditions of the detention facility SIZO-
2 and then, as a result of unfair court proceedings, had been
confined in a mental hospital while not being in need of such
medical treatment. During that time his health had deteriorated,
he had been unable to work and maintain his family and his
relatives had incurred substantial expenses in providing him with
food and other living essentials for several years. He had
suffered emotional distress as a consequence of extensive
violations of the domestic and international law in the course of
the proceedings against him.
116. The Government submitted first that the finding of a
violation would constitute sufficient satisfaction. They further
argued that in any event the claim was excessive, unreasonable and
lacking in substantiation, in which case a symbolic amount would
be equitable.
117. The Court observes that some forms of non-pecuniary
damage, including emotional distress, by their very nature cannot
always be the object of concrete proof (see Abdulaziz, Cabales and
Balkandali v. the United Kingdom, judgment of 28 May 1985, Series
A No. 94, p. 44, з 96). This does not prevent the Court from
making an award if it considers that it is reasonable to assume
that an applicant has suffered injury requiring financial
compensation. In the present case the Court considers that the
applicant's prolonged detention on remand in conditions amounting
to degrading treatment and disregard for his right to appear
before the trial court in criminal proceedings brought against him
must have caused him distress, frustration and uncertainty which
cannot be compensated solely by the finding of a violation.
118. Deciding on an equitable basis, the Court awards the
applicant EUR 5,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
119. The applicant claimed 14,775 US dollars ("USD") in respect
of his representation by Mr A.A. Rekant, a member of Human Rights
NGO Комитет за Гражданские Права, in the domestic proceedings and
the proceedings before this Court and in respect of translation
costs. The applicant further claimed USD 644, 2,694.6 Russian
roubles ("RUR") and 791.34 Ukrainian hryvnas ("UAH") for travel
expenses relating to Mr A.A. Rekant's visits to Odessa, where the
applicant was detained, for a meeting with him. Lastly, he claimed
RUR 3,561.86 for postage and telephone expenses.
120. The Government argued that the expenses were not properly
substantiated: for instance postal receipts did not bear the
payer's name.
121. The Court reiterates that in order for costs and expenses
to be included in an award under Article 41, it must be
established that that they were actually and necessarily incurred
in order to prevent or obtain redress for the matter found to
constitute a violation of the Convention and were reasonable as to
quantum (see, for example, Nilsen and Johnsen v. Norway [GC], No.
23118/93, з 43, ECHR 1999-VIII).
122. Having regard to the material submitted and deciding on an
equitable basis, the Court awards the applicant EUR 1,500 for
legal costs, less EUR 872 received by way of legal aid from the
Council of Europe, plus any tax that may be chargeable on that
amount. As regards the remaining costs and expenses claimed, it
finds that RUR 4,519.99 and UAH 620.36 were shown to have been
actually and necessarily incurred, which amounts it awards the
applicant, plus any tax that may be chargeable on those amounts.
C. Default interest
123. The Court considers it appropriate that the default
interest 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. Holds that there has been a violation of Article 3 of the
Convention;
2. Holds that there has been a violation of Article 5 з 3 of
the Convention;
3. Holds that there has been a violation of Article 6 зз 1 and
3 (c) of the Convention;
4. 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 з 2 of the Convention, the following
amounts:
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(ii) EUR 628 (six hundred twenty-eight euros) in respect of
legal costs, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(iii) RUR 4,519.99 (four thousand five hundred nineteen Russian
roubles ninety nine kopecks) and UAH 620.36 (six hundred twenty
Ukrainian hryvnas thirty six kopiykas) in respect of other
expenses, the latter amount to be converted into Russian roubles
at the rate applicable at the date of settlement;
(iv) any tax that may be chargeable 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;
5. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 20 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
{Bostjan M.ZUPANCIC}
President
Vincent BERGER
Registrar
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