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Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

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                             FIRST SECTION
                       CASE OF MAYZIT v. RUSSIA
                      (Application No. 63378/00)
                             JUDGMENT <*>
                        (Strasbourg, 20.I.2005)
       In the case of Mayzit v. Russia,
       <*>  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.
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mr L. Loucaides,
       Mr P. Lorenzen,
       Mrs N. Vajic,
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mr K. Hajiyev, judges,
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 9 December 2004,
       Delivers  the  following judgment, which was  adopted  on  that
       1. The case originated in an application (No. 63378/00) 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,  Mr  Yuriy
   Yevgenyevich Mayzit ("the applicant") on 10 July 2000.
       2.  The  Russian Government ("the Government") were represented
   by  Mr P.A. Laptev, the Representative of the Russian Federation at
   the European Court of Human Rights.
       3.  The  applicant alleged, inter alia, that the conditions  of
   his  pre-trial detention were inhuman; that the authorities did not
   respect  his choice of defence counsel; that he could not  properly
   prepare  for  trial because of the conditions in  the  prison;  and
   that his application for release was not examined.
       4.  The  application was allocated to the First 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 29 April 2003, the Court  declared  the
   application partly admissible.
       6.  The applicant and the Government each filed observations on
   the merits (Rule 59 з 1).
                               THE FACTS
                   I. The circumstances of the case
       7. The applicant was born in 1953 and lives in Kaliningrad.
       8.  On  21  July  1998  the investigating  authorities  of  the
   District  Department  of Internal Affairs of Kaliningrad  opened  a
   criminal  investigation based on a complaint by Mr. S  who  alleged
   that the applicant had shot at his windows with a hunting rifle  in
   revenge  for an unpaid debt. Following Mr. S's second complaint  on
   14   August   1998   concerning  a  similar  incident,   a   second
   investigation was opened and joined with the first.
       9.  It appears that these investigations led to the applicant's
   arrest  on  21  September  1998. Following interrogations,  he  was
   detained  on 22 September 1998 under suspicion of having  committed
   a  crime under Sections 167 з 2 and 213 з 3 of the Criminal Code of
   the  Russian Federation which concerns intentional destruction  of,
   or  damage  to,  property  and  hooliganism  and  which  carries  a
   sentence of up to seven years' imprisonment.
       10.  The  following day, 23 September 1998, the  applicant  was
   released under his written undertaking not to leave the town  as  a
   measure of restraint.
       11.  On  1  December 1998 the prosecution authorities forwarded
   the  case-file  and an indictment to the Moskovskiy District  Court
   of  Kaliningrad  for examination and trial. However,  on  24  March
   1999  the  court  remitted  the  case for  further  investigations.
   During  these subsequent investigations the authorities issued,  on
   7  July 1999, an arrest warrant against the applicant as he had  on
   a  number  of  occasions  failed to attend for  interrogation.  The
   applicant  was arrested on 27 July 1999 and remained  in  detention
   until  1  October 1999 when the District Court ordered his release,
   finding    the   alleged   risk   of   the   applicant   absconding
       12.   In   the   meantime,  on  2  August  1999,  the   resumed
   investigations  had been brought to an end and the case-file  sent,
   once  more, to the District Court for adjudication. However, on  30
   September 1999 the District Court ordered further investigation  to
   be  carried  out. In the course of this investigation, on  4  April
   2000,  the  authorities  anew ordered the  applicant's  arrest  and
   detention  on  the  basis  that  the  applicant  had  changed   his
   residence,  failed to appear for interrogations  and  hampered  the
   proceedings. On 17 April 2000 an arrest warrant was issued  and  on
   26  July 2000 the applicant was arrested and detained on remand  in
   the Remand Centre IZ-39/1 of Kaliningrad.
                      A. Conditions of detention
       13. According  to  the  report  issued  by  the  Chief  Prison
   Directorate  of  the  Ministry   of   Justice,  submitted  by  the
   Government, the applicant  stayed  at the  Remand  Centre  IZ-39/1
   from 26 July 2000 until 7 March 2001 and from  16 May  2001  until
   18 July 2001. He was kept in  six  different  cells  described  as
   follows: cell No. 67 (21 m  of  surface,  10 bunks,  the  sanitary
   conditions satisfactory); cell No. 97 (7.8 m  of surface, 6 bunks,
   the  sanitary conditions satisfactory);  cell No. 135  (25.1 m  of
   surface,  10 bunks,  the  sanitary  conditions satisfactory); cell
   Nos. 4/16, 4/8, 4/21 (13.8 m  of  surface for  each cell, 8 bunks,
   the sanitary conditions of  each  of the  cells  satisfactory). It
   appears from the report that the sanitary and technical conditions
   of  the cells in which the applicant  was  held   were   monitored
   on a regular basis.
       14. In accordance with Section 17 з 1.11 of the Federal Law  on
   detention  the applicant was allowed daily walks for not less  than
   one hour.
       15.  According  to  a  letter from  the  Head  of  the  Medical
   Department  of  the Prison Directorate for the Kaliningrad  Region,
   submitted by the Government, the applicant was on admission to  the
   remand   centre   examined   by  the  general   practitioner,   the
   dermatologist, the venerologist and the psychiatrist who found  his
   health  to  be satisfactory. In the course of a check-up  two  days
   after  his  arrival, on 28 July 2000, post-tuberculosis changes  in
   the  upper  lobe  of  the  right lung  were  detected.  During  the
   detention   the  applicant  did  not  make  requests  for   medical
   assistance,  no  diseases were detected in the  course  of  routine
   examination  and  his  state  of  health  was  considered   to   be
       16.  Without  disputing  the size of the  cells  the  applicant
   submitted that these were dirty and infected with cockroaches, bed-
   bugs  and  lice. The weekly inspection did nothing to remedy  that.
   The  cells  were  overcrowded, leaving  about  1  square  metre  of
   surface  per person. The detainees were obliged to sleep  in  turns
   and  the applicant could wash only every 10 days. The windows  were
   covered with steel shutters and let in very little light.
                B. The applicant's requests for release
       17.  As indicated above the applicant was arrested and detained
   on 26 July 2000.
       18.  On  30 July 2000 the applicant lodged an application  with
   the  Moskovskiy District Court of Kaliningrad complaining about the
   unlawfulness  of the arrest, under Section 220-2  of  the  Code  of
   Criminal  Procedure of the RSFSR. The application was remitted  for
   review  to the Tsentralniy District Court of Kaliningrad being  the
   place of the applicant's detention.
       19.  On  25  August  2000  the Tsentralniy  District  Court  of
   Kaliningrad,  for its part, forwarded the application  for  release
   from  detention  under  Section  220-2  of  the  Code  of  Criminal
   Procedure,  without examining it, to the Moskovskiy District  Court
   for  a  ruling on a measure of restraint under Section 223  of  the
   Code of Criminal Procedure of the RSFSR.
       20.  On  4  September  2000 the Moskovskiy  District  Court  of
   Kaliningrad decided to remit the applicant's complaint of  30  July
   2000  about the unlawfulness and invalidity of detention for review
   to  the  judge of the Moskovskiy District Court of Kaliningrad  who
   conducted the proceedings in the case.
       21. On 21 November 2000 the Criminal Chamber of the Kaliningrad
   Regional Court dismissed the applicant's appeal against the  ruling
   of  the  Moskovskiy District Court of Kaliningrad  of  4  September
       22.  On  15  December  2000 the Moskovskiy  District  Court  of
   Kaliningrad  rejected the applicant's application of 30  July  2000
   for release pending trial.
       23.  On 19 August 2002 a Deputy President of the Supreme  Court
   made an application for supervisory review of the decisions of  the
   Moskovskiy District Court of 4 September and 15 December 2000.  The
   Deputy President alleged that these decisions had been unlawful  as
   far as they had effectively deprived the applicant of his right  to
   obtain a judicial review of his detention.
       24.  On  16  September 2002 the Presidium  of  the  Kaliningrad
   Regional  Court granted the application. It set aside the decisions
   of  the  Moskovskiy District Court of 4 September and  15  December
   2000   and   ordered  a  fresh  examination  of   the   applicant's
   application  for  release. It appears that the  applicant  did  not
   pursue the case following which the proceedings were terminated.
           C. The criminal trial subsequent to 26 July 2000
       25.  On  21  August  2000,  following  the  completion  of  the
   investigation  ordered by the District Court on 30  September  1999
   (see  з  12  above), the public prosecutor prepared the  indictment
   and  submitted the case to the District Court for adjudication. The
   indictment  referred  to Sections 330 з  2  and  213  з  3  of  the
   Criminal  Code.  On  4 September 2000 the court  decided  that  the
   applicant should be given time to study the case-file and  set  the
   trial to commence on 9 October 2000. Due to the seriousness of  the
   charges  against  the  applicant  the  court  appointed  a  defence
   counsel.  It appears that the applicant refused the appointment  of
   eight  different defence counsels and eventually the court  decided
   to  entrust  the applicant's defence to Mr M. as the applicant  had
   not  suggested any other lawyers. During the trial, on  12  October
   2000,  the applicant requested that he be represented by his mother
   and  his  sister.  On  13  October  2000  the  court  rejected  the
   applicant's  request referring in particular to the fact  that  the
   case  was  complex and that therefore special legal  knowledge  and
   professional experience, which his mother and sister did not  have,
   were  required.  A  subsequent request of 19 November  2000  to  be
   represented by his relatives was likewise rejected.
       26.  By  judgment  of 25 December 2000 the Moskovskiy  District
   Court  found  the applicant guilty of the charges against  him  and
   sentenced  him  to six years' imprisonment. The applicant  appealed
   against  the  judgment,  complaining also  that  he  had  not  been
   allowed to choose his legal assistance.
       27.  On  27 February 2001 the Kaliningrad Regional Court upheld
   the  judgment. On 28 February 2002 the Presidium of the Kaliningrad
   Regional Court lowered the sentence to four years' imprisonment.
       28.  On  an  unspecified date the applicant filed a supervisory
   complaint in order to review the domestic courts' judgment  in  his
   case.  On  6 May 2004 the judicial panel on criminal cases  of  the
   Supreme  Court  rendered its judgment which in part  found  in  the
   applicant's favour. The Supreme Court quashed the domestic  courts'
   judgments  in  so  far  as  they related to  the  conviction  under
   Section 213 з 3 of the Criminal Code, whereas the remainder of  the
   conviction was upheld. The applicant has been released from  prison
   having served the sentence related to the remaining conviction.
                       II. Relevant domestic law
       29.  Code  of  Criminal  Procedure of 1960,  in  force  at  the
   material time:
       Article 46. The accused
       "...  The  accused may ... appeal to court against unlawfulness
   and groundlessness of detention..."
       Article 47. Involvement of defenders in criminal proceedings
       "May be admitted as defenders: an advocate authorised by a  bar
   office;  a  representative of a trade union or  of  another  public
       Where   authorized  by  a  court  decision  or  ruling,   close
   relatives, legal representatives and other persons may be  admitted
   as defenders."
       Article 49. Obligatory participation of defender
       "A defender's participation is obligatory in proceedings:
       1. in which a public or private prosecutor is involved..."
       Article  220-1. Appeals against detention orders and  extension
   of custody periods
       "... When a prison administration receives a detainee's [appeal
   to  a court against pre-trial detention], it must pass the [appeal]
   to  the  relevant  court immediately, and, at any rate,  not  later
   than   24  hours  after  its  receipt,  having  informed  a  public
       If  the  appeal  has been lodged via the prison administration,
   the  prosecutor must send [the documents confirming the  lawfulness
   and  validity  of the detention as a measure of restraint]  to  the
   court  within 24 hours after receipt of the prison administration's
   notification that the person concerned has lodged the appeal..."
       Article  220-2. Judicial review of lawfulness and  validity  of
   detention orders and extension of custody periods
       "...  A  judge must review the lawfulness of the detention  ...
   within  three  days  after  receipt  of  documents  confirming  the
   lawfulness   and  validity  of  the  detention  as  a  measure   of
       30. Constitution of the Russian Federation of 1993:
       Article 48
       "Everyone  has  the right to professional legal aid.  In  cases
   established by law, legal aid is granted free..."
                                THE LAW
          I. Alleged violation of article 3 of the Convention
       31.  The applicant complained about his conditions of detention
   in  the  Remand  Centre IZ-39/1. 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."
                      A. Arguments of the parties
       32.  The  applicant referred in particular to the  overcrowding
   and  unsanitary conditions in his cells which had an adverse effect
   on his physical health and caused him humiliation and suffering.
       33.  The  Government argued that the applicant's conditions  of
   detention  could  not be considered to amount  to  a  violation  of
   Article  3  of  the Convention. They pointed out that the  sanitary
   conditions  in all the cells where the applicant was detained  were
   found  to  be  satisfactory and they were monitored  on  a  regular
   basis.  The  applicant  was allowed daily walks  and  was  in  good
   health.  In  particular the Government stressed that the  applicant
   underwent  a medical examination upon arrival and that  during  his
   detention  he made no request for medical assistance. Finally,  the
   authorities  had  no  intention  to  make  the  applicant   suffer,
   physically or morally, to debase his human dignity or to  humiliate
   him during his detention.
                       B. The Court's assessment
       34.  The  Court  reiterates that 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 (see  Labita  v.  Italy,
   judgment of 6 April 2000, Reports of Judgments and Decisions  2000-
   IV, з 119).
       35.  The Court further reiterates that, according to its  case-
   law,  ill-treatment must attain a minimum level of severity  if  it
   is  to  fall within the scope of Article 3. The assessment of  this
   minimum  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 (see, among other authorities, Ireland v.  the
   United  Kingdom, judgment of 18 January 1978, Series A No.  25,  p.
   65, з 162).
       36. The Court has considered treatment to be "inhuman" because,
   inter  alia,  it  was  premeditated, was applied  for  hours  at  a
   stretch  and caused either actual bodily injury or intense physical
   and  mental  suffering. It has deemed treatment to  be  "degrading"
   because  it was such as to arouse in the victims feelings of  fear,
   anguish  and  inferiority capable of humiliating and debasing  them
   (see,  for  example, {Kudla} <**> v. Poland, No.  30210/96,  з  92,
   ECHR  2000-XI).  In  considering  whether  a  particular  form   of
   treatment  is  "degrading" within the meaning  of  Article  3,  the
   Court  will  have regard to whether its object is to humiliate  and
   debase   the   person  concerned  and  whether,  as  far   as   the
   consequences  are  concerned,  it adversely  affected  his  or  her
   personality  in a manner incompatible with Article  3  (see,  among
   other  authorities,  Raninen v. Finland, judgment  of  16  December
   1997,  Reports of Judgments and Decisions, 1997-VIII,  pp.  2821  -
   22,  з  55).  However,  the  absence of  any  such  purpose  cannot
   conclusively rule out a finding of a violation of Article  3  (see,
   among other authorities, Peers v. Greece, No; 28524/95, з 74,  ECHR
   2001-III).  The  suffering and humiliation  involved  must  in  any
   event   go   beyond  that  inevitable  element  of   suffering   or
   humiliation connected with a given form of legitimate treatment  or
       <**>  Здесь  и  далее  по  тексту слова на  национальном  языке
   набраны латинским шрифтом и выделены фигурными скобками.
       37.  Measures  depriving  a person of  his  liberty  may  often
   involve  such  an element. Yet it cannot be said that detention  on
   remand   in  itself  raises  an  issue  under  Article  3  of   the
   Convention.  Nor can that Article be interpreted as laying  down  a
   general  obligation to release a detainee on health grounds  or  to
   place  him  in  a  civil hospital to enable him to obtain  specific
   medical treatment.
       38.  Nevertheless, under this provision 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
   handlings  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 (see Kalashnikov v. Russia, No. 47095/99, ECHR 2002-VI).
       39. In the present case the  Court  recalls that the applicant
   was  detained  in  the  Remand  Centre  IZ-39/1  from 26 July 2000
   until  7 March  2001  and  from 16  May 2001  until  18 July 2001,
   that is a total of 9 months  and 14 days. He was kept in different
   cells  which  according   to  the   information  provided  by  the
   Government were designed  for  between 6 and  10 inmates and  thus
   left between 1.3 and 2.51 square metres for each inmate. It may be
   questioned  whether  such   accommodation  could  be  regarded  as
   attaining  acceptable  standards. In  this  connection  the  Court
   recalls that the European Committee  for the Prevention of Torture
   and Inhuman or  Degrading  treatment or  punishment (CPT) has  set
   7 m  per  prisoner  as  an  appropriate, desirable guideline for a
   detention cell.
       40. Despite the  fact  that  the  cells in which the applicant
   stayed  were  designed  for  a  specific  number  of  inmates  the
   applicant submitted that  the  actual  number of inmates was 2 - 3
   times higher and that  therefore he had to share a bed with 1 or 2
   other inmates. The  Government did not contest this allegation nor
   did they  submit  any  evidence  to  the  contrary.  Besides, from
   similar cases (cf. the above  mentioned Kalashnikov v. Russia) the
   Court is aware that overcrowding in pre-trial detention facilities
   is  a  general   problem   in   Russia  (ibid.  з  93).  In  these
   circumstances the Court does  not find it of crucial importance to
   determine the  exact  number  of  inmates  in the cells during the
   periods concerned.  The  material  available  suggests that at any
   given  time there  would  be  less  than 2 m  of space per inmate.
   Thus, in the Court's  view the  cells  were overcrowded, something
   which in itself raises an issue under Article 3 of the Convention.
       41.  As  regards  the  sanitary conditions  of  the  cells  the
   applicant   alleged  that  they  were  dirty  and   infested   with
   cockroaches,  bed-bugs and lice, and that the windows were  covered
   with  steel shutters which let in very little light. The Government
   submitted   that   the  sanitary  conditions  were   "satisfactory"
   according  to  the report of the Chief Prison Directorate  without,
   however,  providing further details or evidence.  Without  entering
   into  further  details  on  this point  the  Court  concludes  that
   although the applicant was allowed outdoor activity for one or  two
   hours  a  day,  the rest of the time he was confined to  his  cell,
   with very limited space for himself.
       42.  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  such  conditions  of  pre-trial
   detention  which  the applicant had to endure for  more  than  nine
   months, must have undermined his human dignity and arousing in  him
   feelings  of humiliation and debasement. In the light of  this  the
   Court  finds  that  the  applicant's conditions  of  detention,  in
   particular the overcrowded environment and the length of  time  the
   applicant  was detained in such conditions, amounted to a degrading
       43.  Accordingly, there has been a breach of Article 3  of  the
       II. Alleged violation of article 5 з 4 of the Convention
       44.  The applicant complained that the domestic authorities did
   not  examine  his application for release, lodged on 30  July  2000
   with sufficient speed. Article 5 з 4 reads as follows:
       "4.  Everyone  who  is  deprived of his liberty  by  arrest  or
   detention  shall  be  entitled to take  proceedings  by  which  the
   lawfulness  of his detention shall be decided speedily by  a  court
   and his release ordered if the detention is not lawful."
                      A. Arguments of the parties
       45.  The  Government  submitted  that  Russian  law,  and,   in
   particular,  Articles 46 and 220-1 of the CCrP, gave detainees  the
   right  to apply to courts for judicial review of the lawfulness  of
   their  detention. The Government claimed that the applicant enjoyed
   this right fully.
       46.  The applicant averred that the Government's submission was
   inconclusive which proved that his complaint was well-founded.
                       B. The Court's assessment
       47. In guaranteeing to persons arrested or detained a right  to
   institute  proceedings, Article 5 з 4 also proclaims  their  right,
   following  the  institution  of  such  proceedings,  to  a   speedy
   judicial  decision terminating their deprivation of liberty  if  it
   proves  unlawful (see Van der Leer v. the Netherlands, judgment  of
   21 February 1990, Series A No. 170-A, з 35).
       48.  This  right must be not only theoretical or  illusory  but
   practical and effective (see R.M.D. v. Switzerland, judgment of  26
   September 1997, Reports 1997-VI, з 51).
       49.  The question of speed of review of lawfulness of detention
   cannot  be  defined  in the abstract but must be  assessed  in  the
   light  of the circumstances of the particular case. The Court  must
   take  account  of  the general conduct of the proceedings  and  the
   extent  to which delays can be attributed to the behaviour  of  the
   applicant  or  his  legal representatives. In  principle,  however,
   since  the  liberty of the individual is at stake, the  State  must
   organise its procedures in such a way that the proceedings  can  be
   conducted  with  the  minimum of delay (see  Zamir  v.  the  United
   Kingdom,  No. 9174/80, Commission's report of 11 October  1983,  DR
   40, p. 42, зз 107 - 108).
       50.  The  Court notes that the applicant lodged his application
   for  release on 30 July 2000. It was only on 15 December 2000, i.e.
   4  months and 15 days later, that the Central District Court  dealt
   with  the  application and decided on the merits of the application
   to keep the applicant in detention pending trial.
       51.  The  Court considers that this period is not "speedy"  the
   more  so  since pursuant to Article 220 of the CCrP  a  court  must
   decide  on an application not later than five days after a detainee
   sends it.
       52.  The  Court  also finds that the whole of  this  period  is
   attributable  to the authorities, since nothing suggests  that  the
   applicant,   having   lodged   the   application,   hampered    its
       53.  There has, accordingly, been a violation of Article 5 з  4
   of the Convention.
                       III. Alleged violation of
                  article 6 з 3 (c) of the Convention
       54.  The applicant next complained under Article 6 з 3  (c)  of
   the  Convention  that  his  relatives had  not  been  permitted  to
   represent him during the trial, and therefore he had to accept  the
   assistance  of  M.,  an  allegedly inefficient  legal-aid  counsel.
   Article 6 з 3 (c) reads as follows:
       "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. Arguments of the parties
       55.  According to the Government, the Moskovskiy District Court
   refused to let the applicant's mother and sister represent  him  at
   the  trial  for valid reasons. The mother was a person of  advanced
   age and frail health. The sister worked as a speech therapist in  a
   children's  polyclinic, and the duties of her office  prevented  an
   active involvement in the proceedings.
       56.  Furthermore,  the  two charges the  applicant  faced  were
   serious,  and  the circumstances of his case were complex.  It  was
   therefore  necessary  for the applicant's  representative  to  have
   special  knowledge  and professional experience in  law,  something
   the  mother  and  sister,  both  lay-educated,  had  not.  Had  the
   relatives  been  permitted to act on the  applicant's  behalf,  the
   defence  could have been weakened, and the proceedings  could  have
   been prolonged. In any event, pursuant to Article 47 of the CCrP  a
   court may, but is not obliged to, admit relatives as defenders.
       57.  With  regard to the professional lawyers involved  in  the
   case,   the  Government  submitted  that  at  the  outset  of   the
   proceedings the authorities had appointed Z., a member of the  bar,
   to  defend  the  applicant. After the applicant  had  refused  Z.'s
   services,  the  court asked the bar association to provide  another
   lawyer. At the beginning of the trial the applicant did not  inform
   the  court whether he would like to have a legal-aid lawyer. Later,
   when M. - the lawyer provided by the bar association to replace  Z.
   -  appeared in the hearing, the applicant protested against  having
   him  as  counsel. The applicant announced that he did not trust  M.
   or  any other legal-aid lawyers who may be appointed because he did
   not  know  them.  The court asked the applicant whether  he  needed
   professional  legal  assistance,  and  whether  indigence  was  the
   reason  why  he  had  not hired a lawyer he wished.  The  applicant
   refused  to  answer these questions. In sum, the applicant  refused
   assistance from eight legal-aid lawyers all of whom acted  in  good
   faith and respected bar ethics.
       58.  Lastly,  pursuant to Article 49 of the CCrP, if  a  public
   prosecutor  participates  in a trial,  defence  counsel  must  also
   participate.  Article 48 of the Constitution  secures  to  everyone
   the  right  to legal aid, free where necessary. Therefore,  if  the
   court  had  disregarded  this  rule by respecting  the  applicant's
   refusal   of   M.,   it   would  have  breached   the   applicant's
   constitutional right to free legal aid.
       59.   The   applicant  asserted  that  even  though  in   their
   submissions  the  Government had referred to the law,  in  reality,
   they distorted the facts and contradicted the Constitution.
       60.  According to him, the authorities refused to  respect  his
   choice   of  defenders  because  otherwise  it  would  have  become
   apparent  that  he  had  no  case to answer,  and  that  the  whole
   proceedings   were   but   a   criminally   fabricated    political
   persecution.  The  case was based on forged  documents,  which  the
   authorities  put  in  and out of the case file  at  will.  Criminal
   methods  of  investigation were employed.  Authorities  which  were
   that malicious needed no independent witnesses of their misdoings.
       61.  Secondly, if the relatives had been admitted as defenders,
   they  would have been able to visit the applicant in remand custody
   as  often  as  they  wished. In that case, the  prison  authorities
   would  not have been able to block his complaints because he  would
   have passed them to the outside through the relatives.
       62.  Next,  M.  was inefficient as defence counsel  because  he
   overlooked  the most outrageous breaches of the rules  of  criminal
   procedure.   If   the   Government   considered   such   assistance
   "professional",   they   should  have  given   examples   of   M.'s
   constructive activity. In fact, the court was satisfied to  have  a
   dummy  instead  of efficient counsel. The mother  and  sister  both
   agreed to defend the applicant. The mother was in good health,  and
   the   sister's  profession  would  in  no  way  had  affected   the
   continuous  flow of the proceedings. Under the law the court  could
   only refuse their participation if they were insane.
       63.  It  is  untrue that the applicant refused  to  answer  the
   court's  question whether he needed professional legal  assistance.
   In  fact, he did answer this question by saying that all the legal-
   aid  lawyers  he  had had, i.e. about a dozen, had been  werewolves
   sympathising  with the prosecution. There was no  sense  in  having
   any  more  of  them. However, the court ignored this statement  and
   imposed  yet  another werewolf of a lawyer ready to  cover  up  the
   lawlessness of the judgment to be given.
                       B. The Court's assessment
       64.  In  examining questions under Article 6 з 3 (c) the  Court
   takes  account  of the treatment of the defence as a  whole  rather
   than   the  position  of  the  accused  taken  in  isolation,  with
   particular regard to the principle of equality of arms as  included
   in the concept of a fair hearing.
       65.  Article 6 з 3 (c) guarantees that proceedings against  the
   accused will not take place without an adequate representation  for
   the  defence,  but does not give the accused the  right  to  decide
   himself  in what manner his defence should be assured. The decision
   as  to  which  of the two alternatives mentioned in  the  provision
   should  be  chosen, namely the applicant's right to defend  himself
   in  person or to be represented by a lawyer of his own choosing, or
   in  certain circumstances one appointed by the court, depends  upon
   the  applicable legislation or rules of court (see X v. Norway, No.
   5923/72, Commission decision of 30 May 1975, Decisions and  Reports
   DR 3, p. 43).
       66.  Notwithstanding  the  importance  of  a  relationship   of
   confidence  between lawyer and client, the right  to  choose  one's
   own  counsel cannot be considered to be absolute. It is necessarily
   subject  to  certain limitations where free legal aid is  concerned
   and  also  where  it  is  for  the courts  to  decide  whether  the
   interests  of  justice  require that the  accused  be  defended  by
   counsel  appointed  by them. When appointing  defence  counsel  the
   national  courts  must  certainly have regard  to  the  defendant's
   wishes.  However,  they can override those wishes  when  there  are
   relevant  and sufficient grounds for holding that this is necessary
   in  the interests of justice (see Croissant v. Germany, judgment of
   25 September 1992, Series A No. 237-B, з 29).
       67.  The State cannot be held responsible for every shortcoming
   on  the  part  of  a lawyer appointed for legal-aid  purposes.  The
   competent  national authorities are required under Article  6  з  3
   (c)  to intervene only if a failure by legal-aid counsel to provide
   effective  representation is manifest or  sufficiently  brought  to
   their  attention  in  some other way (see  Kamasinski  v.  Austria,
   judgment of 19 December 1989, Series A No. 168, з 65).
       68.  The  Court  notes that Article 47 of the CCrP  sets  as  a
   general  rule  the requirement that defenders must be  professional
   advocates,  members of the bar. Pursuant to the same provision  the
   Moskovskiy District Court could, if it had seen fit, have  let  the
   applicant's  mother  and  sister act as his  defenders.  The  court
   considered, however, that as lay persons they would not be able  to
   ensure  the  applicant's efficient defence in compliance  with  the
   procedure.  Furthermore, the court concluded that they  would  not,
   for  the  reasons of health or occupation, be able sufficiently  to
   attend   to   the  proceedings.  In  the  Court's  opinion,   these
   considerations  were  legitimate  and  outweighed  the  applicant's
       69. Insofar as the applicant alleges that the legal aid lawyers
   appointed  by  the Moskovskiy District Court were inefficient,  the
   applicant  has  not  substantiated any examples of  their  manifest
       70.  Considering the applicant's defence as a whole, the  Court
   notes  that  he was given an ample opportunity to present  his  own
   case.  The  restriction  imposed  on  the  applicant's  choice   of
   representation was limited to excluding his mother  and  sister  on
   the  grounds  cited  above. The applicant  could  have  chosen  any
   advocate to represent him but apparently made no effort to  do  so.
   The  facts  of  the  case do not disclose any disadvantage  to  the
   defence or unfairness in this respect.
       71.  There has therefore been no violation of Article 6 з 3 (c)
   of the Convention.
     IV. Alleged violation of article 6 з 3 (b) of the Convention
       72.  The applicant complained next that he could not adequately
   prepare  for trial because of the poor conditions of his detention,
   and  because the administration of the remand centre prohibited him
   to   have  legal  books  and  to  copy  procedural  documents.  The
   applicant  referred  to Article 6 з 3 (b) of the  Convention  which
   reads as follows:
       "3.  Everyone charged with a criminal offence has the following
   minimum rights: ...
       (b) to have adequate time and facilities for the preparation of
   his defence..."
                      A. Arguments of the parties
       73.  In  the Government's submission, the applicant  had  ample
   opportunity  to  study the material gathered  against  him  by  the
   prosecution. The investigating authorities served on the  applicant
   the  final version of the indictment on 8 August 2000, and as early
   as   on   15  August  2000  they  let  him  study  the  case  file.
   Furthermore,  on  4  September 2000 the Moskovskiy  District  Court
   provided the applicant with extra time to study the case file.  The
   trial  came about later, in December 2000, hence the applicant  had
   enough time to prepare for it.
       74. During the trial the applicant wrote a number of complaints
   to   various   authorities.  Many  of  the   complaints   contained
   references to laws indicating that the applicant had access to  law
   books.  The  Government enclosed a copy of  an  application  of  15
   March  2001  in  which  the  applicant's friend  asked  the  prison
   administration to pass to the applicant legal codes. Lastly,  after
   his  conviction the applicant received copies of the  judgment  and
   trial records which means that he had everything necessary to  file
   an appeal.
       75. The applicant claimed that the information submitted by the
   Government was incorrect.
       76.  With  regard  to  the application  of  15  March  2001  he
   maintained  that nothing proved that it had in fact  been  granted,
   and  that,  in  any  event,  by  that  date  he  had  already  been
   convicted.  Secondly, the great number of complaints the  applicant
   wrote from prison only demonstrated his firm will to stand for  his
   rights  despite  the  unbearable conditions of detention.  Thirdly,
   the  trial  lasted from 9 October to 25 December 2000,  and  during
   this  period the applicant in sum spent 22 days in the  tight  cell
   in  which  he  awaited  being  called  to  the  courtroom.  He  was
   handcuffed throughout the trial.
                       B. The Court's assessment
       77.  The  specific  guarantees laid  down  in  Article  6  з  3
   exemplify   the  notion  of  fair  trial  in  respect  of   typical
   procedural  situations  which arise in criminal  cases,  but  their
   intrinsic  aim is always to ensure, or contribute to ensuring,  the
   fairness  of  the criminal proceedings as a whole.  The  guarantees
   enshrined  in Article 6 з 3 are therefore not an end in themselves,
   and  they  must  accordingly be interpreted in  the  light  of  the
   function   which   they  have  in  the  overall  context   of   the
       78. Article 6 з 3 (b) guarantees the accused "adequate time and
   facilities  for  the  preparation of  his  defence"  and  therefore
   implies  that  the substantive defence activity on his  behalf  may
   comprise  everything  which  is "necessary"  to  prepare  the  main
   trial.  The  accused  must  have the opportunity  to  organise  his
   defence  in an appropriate way and without restriction  as  to  the
   possibility to put all relevant defence arguments before the  trial
   court,  and  thus to influence the outcome of the proceedings.  The
   provision is violated only if this is made impossible (see  Can  v.
   Austria,  No. 9300/81, Commission's report of 12 July 1984,  Series
   A No. 96, з 53).
       79. The "rights of defence", of which Article 6 з 3 (b) gives a
   non-exhaustive list, have been instituted, above all, to  establish
   equality,  as  far  as  possible, between the prosecution  and  the
   defence.  The facilities which must be granted to the  accused  are
   restricted  to  those  which  assist  or  may  assist  him  in  the
   preparation  of his defence (see Jespers v. Belgium,  No.  8403/78,
   Commission's report of 14 December 1981, DR 27, p. 61, зз 55, 57).
       80.  Turning  to  the present case the Court recalls  that  the
   indictment  was  served on the applicant in August 2000,  and  that
   the  District Court, in September 2000, set the trial  to  commence
   on  9  October 2000 in order to allow the applicant time  to  study
   the  case-file. In these circumstances, and having  regard  to  the
   charges against him, the Court is satisfied that the applicant  had
   sufficient "time" to prepare for the trial.
       81.  As  regards the "facilities" the Court does not  rule  out
   that  where  a  person  is detained pending trial,  this  word  may
   include  such  conditions of detention that permit  the  person  to
   read  and  write with a reasonable degree of concentration.  Having
   regard  to  its conclusion above under Article 3 of the  Convention
   it  is  clear that the conditions of the applicant's detention  did
   not  favour intense mental work. Nevertheless, the Court notes that
   no  restrictions were placed on the applicant as regards access  to
   the  case-file  and free and unrestricted legal aid assistance  was
   placed at the applicant's disposal, although he chose not to  avail
   himself   thereof.  Accordingly,  the  Court  is   satisfied   that
   appropriate facilities were available.
       82.  Finally,  and  leaving aside the fact that  the  applicant
   chose  to  disregard the legal assistance offered, the Court  finds
   that  the applicant's allegations about the lack of access  to  law
   books  in the prison, lack of access to photocopying, his placement
   in  a  tight cell during the days of court hearings and the use  of
   handcuffs remain unsupported by factual evidence. Nor has  it  been
   shown  that  the  applicant at any moment availed  himself  of  the
   right  to  bring  these issues to the attention  of  the  competent
   authorities  had he considered this to influence, at  the  relevant
   time, the preparation of his defence.
       83.  Having regard to all of the above the Court finds that the
   effects  of  the  applicant's detention taken as a  whole  did  not
   restrict  the rights of the defence in a way that the principle  of
   a  fair  trial,  as  set out in Article 6 of  the  Convention,  was
       84.  There has accordingly been no breach of Article 6 з 3  (b)
   of the Convention.
            V. Application of article 41 of the Convention
       85. 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."
       86.  The  Court points out that under Rule 60 of the  Rules  of
   Court  any  claim  for  just  satisfaction  must  be  itemised  and
   submitted   in  writing  together  with  the  relevant   supporting
   documents  or vouchers, "failing which the Chamber may  reject  the
   claim in whole or in part".
       87.  On  6  May  2003, after the present application  had  been
   declared admissible, the Court invited the applicant to submit  his
   claims  for  just satisfaction. He did not submit any  such  claims
   within the required time-limits.
       88.  In  such  circumstances, the Court would usually  make  no
   award  (see Ryabykh v. Russia, No. 52854/99, зз 67 - 68, ECHR 2003-
   X,  Timofeyev  v.  Russia, No. 58263/00, зз 51  -  52,  23  October
   2003).  In  the  present  case, however,  the  Court  has  found  a
   violation  of  the  applicant's  right  not  to  be  subjected   to
   degrading  treatment.  Since this right is of  absolute  character,
   the  Court finds it possible to award the applicant 3,000 euros  by
   way of non-pecuniary damage.
       1.  Holds that there has been a violation of Article 3  of  the
       2.  Holds that there has been a violation of Article 5 з  4  of
   the Convention;
       3.  Holds that there has been no violation of Article 6 з 3 (c)
   of the Convention;
       4.  Holds that there has been no violation of Article 6 з 3 (b)
   of the Convention;
       5. Holds
       (a)  that the respondent State is to pay the applicant,  within
   three  months  from  the date on which the judgment  becomes  final
   according  to  Article 44 з 2 of the Convention, EUR  3,000  (three
   thousand  euros)  in  respect  of  non-pecuniary  damage,   to   be
   converted  into  the national currency of the respondent  State  at
   the  rate  applicable at the date of settlement, plus any tax  that
   may be chargeable;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amount  at  a  rate  equal  to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       6.  Dismisses the remainder of the applicant's claim  for  just
       Done  in  English, and notified in writing on 20 January  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
                                                      Christos ROZAKIS
                                                       {Soren} NIELSEN

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