EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF KHUDOYOROV v. RUSSIA
(Application No. 6847/02)
JUDGMENT <*>
(Strasbourg, 8.XI.2005)
--------------------------------
<*> 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 Khudoyorov v. Russia,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr {M. Pellonpaa} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr K. Traja,
Mr A. Kovler,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 11 October 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 6847/02) 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 national of Tajikistan, Mr
Doniyor Toshpulotovich Khudoyorov, on 29 January 2002.
2. The applicant, who had been granted legal aid, was
represented before the Court by Mr F. Bagryanskiy and Mr M.
Ovchinnikov, lawyers practising in Vladimir, Mrs K. Moskalenko, a
lawyer with the International Protection Centre in Moscow, and Mr
W. Bowring, a London lawyer. The Russian Government ("the
Government") were represented by their Agent, Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicant alleged, in particular, that the conditions of
his detention in facility No. OD-1/T-2 and conditions of transport
to and from the courthouse had been incompatible with Article 3 of
the Convention, that his pre-trial detention had been unlawful
after 4 May 2001 and also excessively long, that his applications
for release filed after 28 April 2001 had not been considered
"speedily", if at all, and that the length of the criminal
proceedings had been excessive.
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. On 13 February 2004 the Section President decided to grant
priority to the application under Rule 41 of the Rules of Court.
6. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed Fourth Section (Rule 52 з 1).
7. By a decision of 22 February 2005, the Court declared the
application partly admissible.
8. The Government, but not the applicant, filed observations on
the merits (Rule 59 з 1).
9. The Chamber decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 з 3 in fine).
THE FACTS
I. The circumstances of the case
10. The applicant was born in 1965. On 17 August 1998 he
arrived in Russia from Tajikistan. He stayed in Vladimir at his
cousin's flat.
A. The applicant's arrest and the search of the flat
11. On 22 January 1999 the applicant was arrested on suspicion
of the unlawful purchase and possession of drugs. A search was
carried out in the flat where he was staying.
B. The applicant's detention pending investigation
12. On 30 January 1999 the applicant was charged under Article
228 з 1 of the Criminal Code with the unlawful purchase and
possession of 3 grams of hashish. He pleaded not guilty and
indicated that he did not need an interpreter because he had
studied in Leningrad.
13. On 12 March and 5 April 1999 the applicant's detention was
extended until 11 July 1999.
14. On 4 June 1999 the Leninskiy District Court of Vladimir
refused the applicant's request for release on bail. It found that
the applicant's detention had been extended in accordance with the
law and that no grounds for releasing him could be established.
The applicant did not appeal to the Regional Court.
15. On 30 June and 2 September 1999 the applicant's detention
was extended until 21 December 1999.
16. On 2 December 1999 the acting Prosecutor General approved
the extension of the applicant's detention until 21 June 2000. The
applicant appealed to the Leninskiy District Court, which on 28
December 1999 dismissed the appeal, finding that the applicant had
been charged with an particularly serious criminal offence and had
resided in Vladimir only temporarily, his permanent residence
being in Dushanbe, Tajikistan, so that there was good reason to
suspect that he would abscond if released. The applicant did not
appeal against that decision to the Regional Court.
C. First remittal of the case for additional investigation
17. On 21 June 2000 the supervising prosecutor approved the
bill of indictment and the case against the applicant and twenty
co-defendants was sent to the Vladimir Regional Court for trial.
18. On 23 June and 17 July 2000 the applicant requested the
Vladimir Regional Court to review the lawfulness of his detention
on remand.
19. On 18 July 2000 the Vladimir Regional Court ordered the
case to be remitted for an additional investigation because the
bill of indictment had not been translated into the Tajik
language, even though seven of the defendants were Tajik. The
court held that the applicant and his co-defendants should remain
in custody.
20. On 24 July 2000 the prosecution appealed against the
decision but subsequently withdrew their appeal. On 30 August 2000
the case was returned to the Vladimir Regional Court for
examination on the merits.
D. Second remittal of the case for additional investigation
1. Reinstatement of the decision of 18 July 2000
21. On 23 November 2000 the Vladimir Regional Court ordered the
case to be remitted for an additional investigation because the
rights of some of the defendants had been unlawfully restricted.
The prosecution appealed.
22. On 28 February 2001 the Supreme Court of the Russian
Federation quashed the decision of 23 November 2000. It found
that, after the case had been remitted for an additional
investigation on 18 July 2000, the prosecution had not remedied
the defects identified by the Regional Court. In particular, the
prosecution had not arranged for translation of the bill of
indictment or checked that the interpreter had the requisite
skills. In view of these procedural defects, the Supreme Court
held that all the subsequent judicial decisions had been unlawful
and remitted the case to the Regional Court for implementation of
the decision of 18 July 2000.
2. Additional investigation
(a) Extension of the applicant's detention for one month (until
4 May 2001)
23. On 4 April 2001 the case was remitted to the prosecutor of
the Vladimir Region for an additional investigation. On the same
day a deputy prosecutor of the Vladimir Region extended the
applicant's detention on remand by one month, until 4 May 2001.
(b) Extension of the applicant's detention for three months
(until 4 September 2001)
24. On 19 April 2001 the prosecutor of the Vladimir Region
applied to the Vladimir Regional Court for an order extending the
applicant's detention. The applicant lodged objections in which he
alleged, inter alia, that the prosecution had thus far failed to
perform any additional investigation.
25. On 28 April 2001 the Vladimir Regional Court established
that the bill of indictment had been translated into Tajik and
that on 18 April 2001 the defendants and their lawyers had begun
their examination of the case file. Noting the gravity of the
charges against the applicant, his Tajik nationality and absence
of a permanent residence in Vladimir, the Regional Court further
remanded him in custody until 4 September 2001.
26. On 4 and 17 May 2001 the applicant appealed against the
decision of the Vladimir Regional Court.
(c) Quashing of the decision to extend the applicant's
detention until 4 September 2001
27. On 8 August 2001 the Supreme Court established that one of
the applicant's co-defendants had not been provided with an
interpreter into Uzbek and that the applicant and other co-
defendants had had no access to the materials examined by the
Regional Court. It held as follows:
"The defects of the court hearing described above and the
curtailing of the defendants' statutory rights... are substantial
violations of the rules of criminal procedure, which could have
affected the judge's conclusions; the decision [of 28 April 2001]
must therefore be quashed and the materials of the case relating
to the extension of the defendants' pre-trial detention must be
referred for a new judicial examination. During the new
examination of the prosecutor's request, the above defects shall
be remedied... and the arguments by the defendants and their
counsel, including those concerning the lawfulness of their
detention, shall be reviewed... The preventive measure [imposed
on, in particular, the applicant] shall remain unchanged".
By an interim decision of the same date, the Supreme Court
refused the applicant leave to appear at the appeal hearing.
(d) Second examination of the request for an extension of the
applicant's detention until 4 September 2001
28. On 11 September and 30 November 2001 the Vladimir Regional
Court adjourned hearings in order to afford the defendants
additional time in which to read the case-file.
29. On 27 February 2002 the Vladimir Regional Court upheld a
challenge by the applicant against the presiding judge.
30. On 11 and 13 March, 12 April, 17 and 18 June 2002 hearings
were adjourned because of the absence of several lawyers,
including the applicant's counsel.
31. On 15 August 2002 the Vladimir Regional Court again granted
the prosecutor's request (of 19 April 2001) for an extension of
the defendants' detention on remand until 4 September 2001. It
found that it was necessary for the applicant to remain in custody
because he was a national of Tajikistan, was not registered as
resident in Vladimir, and had been charged with a serious criminal
offence. The court also referred to certain "conclusions"
contained in the prosecutor's application to the effect that the
applicant might abscond or obstruct justice. The content of these
"conclusions" was not disclosed.
32. On 23 September 2002 the applicant lodged an appeal against
the decision of the Vladimir Regional Court. He claimed that the
contested decision was "unlawful and unconstitutional" and
requested leave to appear in person at the appeal hearing.
33. On 23 January 2003 the Supreme Court upheld the decision of
15 August 2002, finding as follows:
"The judge came to a well-justified conclusion that the
defendants... could not be [released pending trial]. The judge had
regard to the fact that these persons were charged with serious
and particularly serious criminal offences, he considered the
information on their character and all the circumstances to which
the prosecutor had referred in support of his application...
The fact that the above-mentioned decision on the prosecutor's
application was [only] made after the defendants had spent that
length of time in custody... is not a ground for quashing the
decision of 15 August 2002 because the first judicial decision on
this matter was quashed in accordance with the law and the
prosecutor's application of 19 April 2001 was remitted for a new
examination. The subsequent progress of the criminal case is,
under these circumstances, of no relevance to a decision on the
prosecutor's application."
By an interim decision of the same date, the Supreme Court
refused the applicant's request for leave to appear because the
defendants' arguments were clearly set out in their grounds of
appeal and their lawyers were present at the hearing while the
prosecutor was not.
E. Third remittal of the case for additional investigation
1. Preparation for the trial
34. Meanwhile, on 4 September 2001 the additional investigation
was completed and the case sent to the Vladimir Regional Court. On
or about that date the applicant asked the court to order his
release pending the trial.
35. On 9 January 2002 the Vladimir Regional Court fixed the
first hearing for 5 February 2002 and held that the applicant
should remain in custody pending trial:
"[The court] did not establish any grounds... to amend or
revoke the preventive measure imposed on the accused given the
gravity of the offence with which the defendants are charged.
Furthermore, the fact that the court decision extending the
detention on remand of several defendants in order to afford them
[time] to examine the case materials was quashed on appeal is of
no legal significance. [In its decision of 8 August 2001] the
Supreme Court did not revoke the preventive measure, the case was
referred to the [trial] court without delay and no other grounds
for amending the preventive measure were established."
36. On 11 February 2002 the applicant lodged an appeal against
the decision. He complained, in particular, that his detention was
unlawful because it had significantly exceeded the maximum
eighteen-month period permitted by law, that the conditions in
which he was detained were poor and that he had been ill-treated
by police officers, both at the time of his arrest and
subsequently. He alleged that his notice of appeal had never been
dispatched to the Supreme Court.
37. On 5 February 2002 the hearing was adjourned until 26
February because three defendants had failed to appear. On 15
February 2002 the applicant prepared an appeal against the
decision to adjourn the hearing; in the notice of appeal, he also
repeated the points he had raised in his appeal of 11 February. He
again stated that his notice of appeal had not been sent to the
Supreme Court.
2. Decision to remit the case for additional investigation
38. On 13 March 2002 the Vladimir Regional Court established
that the case was not ready for consideration on the merits
because of a series of procedural defects: in particular, several
defendants had not had sufficient time to study the case file, one
defendant had not been provided with interpretation facilities
into Uzbek, and the applicant had not been informed in good time
of the expert examinations. The court remitted the case for an
additional investigation and remanded the defendants in custody
"in the light of the gravity and dangerous nature of the
offences".
39. On 11 April 2002 the prosecution appealed against the
decision of 13 March and the applicant did likewise on 29 April.
The applicant submitted, in particular, that the domestic law did
not permit extensions of detention "during the investigation"
beyond the maximum period of eighteen months which had expired, in
his case, on 4 April 2001.
40. On 28 May 2002 the case-file was forwarded to the Supreme
Court for examination of the issue of detention on remand.
3. Quashing of the decision to remit the case
for additional investigation
41. On 8 August 2002 the Supreme Court refused, in an interim
decision, the applicant's request for leave to appear, holding
that his position had been clearly and exhaustively stated in the
grounds of appeal.
42. On 12 September 2002 it examined the appeals lodged by the
prosecutor, the applicant and his co-defendants and found that the
defence rights had not been impaired. On this ground it quashed
the decision of 13 March 2002 and instructed the Vladimir Regional
Court to proceed with the trial. It held that the applicant and
his co-defendants should remain in custody because "there were no
legal grounds to amend the preventive measure given the gravity
and dangerous nature of the offences".
43. On 7 October 2002 the case-file was returned to the
Vladimir Regional Court.
F. Further extensions of the applicant's detention
pending trial and his release from custody
44. On 18 November 2002 the Vladimir Regional Court extended
the applicant's detention on remand until 3 December 2002. It
found as follows:
"The case was referred to the Vladimir Regional Court on 2
September 2001; on 13 March 2002 it was decided to remit the case
for additional investigation. On 12 September 2002 the Supreme
Court quashed that decision on appeal by the prosecutor. Thus, the
defendants have remained in custody for 8 months and 16 days,
starting from the date of the case's referral and excluding the
period between [the end of the] examination on the merits and the
quashing of the decision [of 13 March 2002] on appeal.
Regard being had to the fact that the defendant is charged with
serious and particularly serious criminal offences, in order to
secure the examination of the case and the enforcement of the
conviction [sic], there are no grounds to [release the applicant].
Under these circumstances, pursuant to Article 255 з 3 of the
Russian Code of Criminal Procedure, the defendant's detention on
remand is extended for an additional three months".
45. On 4 December 2002 the Vladimir Regional Court granted a
further extension of the applicant's detention for three months,
that is to say until 3 March 2003 [the decision mistakenly
indicates 2002]. The grounds invoked by the court were identical
to those set out in the decision of 18 November 2002.
46. On 22 and 26 November and 5 December 2002 the applicant's
lawyers lodged appeals against the decisions of 18 November and 4
December with the Supreme Court. They submitted, in particular,
that the six-month period of the applicant's detention which had
started from the moment the case was referred for trial, had
expired on 2 March 2002 but had been extended only two months and
sixteen days later, on 18 November. Therefore, the applicant's
detention from 13 March to 12 September 2002 had not been covered
by any detention order: the prosecution had not assumed
responsibility for the case, whilst the courts considered that the
case had been remitted for an additional investigation and held
the prosecution accountable for the applicant's detention.
47. On 3 March, 28 May, 28 August and 27 November 2003 and 27
February 2004 the Vladimir Regional Court authorised further
extensions of detention in respect of the applicant and 12 co-
defendants, on each occasion for a period of three months. The
reasons given in the decisions of 3 March, 28 May and 28 August
2003 were identical to those given in the decisions of 18 November
and 4 December 2002 (see above). The decisions of 27 November 2003
and 27 February 2004 referred to the gravity of the charges and
the existence of "sufficient reasons to believe that the
defendants would abscond".
The applicant submitted appeals against each of these
decisions.
48. Between May 2003 and 15 March 2004 the trial proceeded. On
19 April 2004 the parties began their final submissions.
49. On 28 May 2004 the Vladimir Regional Court, by an interim
decision, held that the applicant's detention on remand was not to
be extended because the prosecution had reduced the charges
against him. He appears to have been released from custody the
same day.
50. On 21 March 2005 the Supreme Court examined the applicant's
and/or his co-defendants' appeals against the decisions of 18
November and 4 December 2002, 3 March, 28 May, 28 August and 27
November 2003 and 27 February 2004 extending their detention on
remand.
The Supreme Court quashed the decisions of 18 November and 4
December 2002 and 3 March 2003 on the ground that they had been
given by an incomplete formation: a single judge instead of a
three-judge panel. As regards the applicant's situation, it
further held:
"Since the judge's decision has been quashed because of a
breach of the rules of criminal procedure, the court will not
examine the arguments in the appeals alleging that the extension
of the [applicant's] detention was unlawful on other grounds. The
matter will not be remitted for a new examination because [the
applicant] has been acquitted."
The Supreme Court upheld the other decisions, finding that the
Regional Court had correctly referred to the gravity of the
charges and the existence of sufficient grounds to believe that
the defendants would abscond during the trial.
G. Discontinuation of the criminal proceedings
51. On 18 June 2004 the Vladimir Regional Court, by an interim
decision, dismissed the charges of participation in an organised
criminal enterprise and running an opium den against the applicant
after they were withdrawn by the prosecution.
52. By another interim decision of the same date, the court
dismissed a charge against the applicant in respect of one
incident of drug possession because of a recent change in the
Russian criminal law that had decriminalised possession of
negligible amounts of drugs.
53. Finally, by a judgment of the same date, the court
acquitted the applicant of the remaining drug-trafficking charges
because his involvement in the commission of the offences could
not be proven. Some of his co-defendants were convicted and
sentenced to various terms of imprisonment.
54. On 21 March 2005 the Supreme Court of the Russian
Federation upheld, on appeal, the above judgment and decisions of
the Vladimir Regional Court.
H. Decisions of the Constitutional Court
55. On 10 December 2002 the Constitutional Court examined the
applicant's complaint concerning his exclusion from the
proceedings before the Supreme Court and confirmed that the
applicant should have had the right to appear in person and plead
his case before the court if a prosecutor was present.
56. On 15 July 2003 the Constitutional Court issued decision
(определение) No. 292-O on the applicant's complaint about the ex
post facto extension of his "detention during trial" by the
Regional Court's decision of 18 November 2002. It held as follows:
"Article 255 з 3 of the Code of Criminal Procedure of the
Russian Federation provides that the [trial court] may... upon the
expiry of six months after the case was sent to it, extend the
defendant's detention for successive periods of up to three
months. It does not contain, however, any provisions permitting
the courts to take a decision extending the defendant's detention
on remand once the previously authorised time-limit has expired,
in which event the person is detained for a period without a
judicial decision. Nor do other rules of criminal procedure
provide for such a possibility. Moreover, Articles 10 з 2 and 109
з 4 of the Code of Criminal Procedure expressly require the court,
prosecutor, investigator... to release anyone who is unlawfully
held in custody beyond the time-limit established in the Code
immediately. Such is also the requirement of Article 5 зз 3 and 4
of the European Convention... which is an integral part of the
legal system of the Russian Federation, pursuant to Article 15 з 4
of the Russian Constitution..."
57. On 22 January 2004 the Constitutional Court delivered
decision No. 66-O on the applicant's complaint about the Supreme
Court's refusal to permit him to attend the appeal hearings on the
issue of detention. It held:
"Article 376 of the Code of Criminal Procedure regulating the
presence of a defendant remanded in custody before the appeal
court... cannot be read as depriving the defendant held in
custody... of the right to express his opinion to the appeal
court, by way of his personal attendance at the hearing or by
other lawful means, on matters relating to the examination of his
complaint about a judicial decision affecting his constitutional
rights and freedoms..."
I. Conditions of the applicant's detention and
in which he was transported
1. The applicant's detention in facility No. OD-1/T-2
58. From 16 February 2000 to 28 May 2004 the applicant was held
in detention facility No. OD-1/T-2 of the Vladimir Region
(учреждение ОД-1/Т-2 УИН МЮ РФ по Владимирской области), known as
"Vladimirskiy Tsentral". He stayed in various cells in wings Nos.
3 and 4, built in 1870 and 1846, respectively.
(a) Number of inmates per cell
59. According to a certificate issued on 22 April 2004 by the
facility director, and which the Government have produced, the
applicant was kept in eight cells described as follows: cell No. 4-
14 (12.1 square metres, 6 bunks, average population 4 to 6
inmates), cell No. 4-13 (12.3 sq. m, 6 bunks, 5 to 7 inmates),
cell No. 4-9 (23.4 sq. m, 13 bunks, 13 to 20 inmates), cells Nos.
3-3, 3-53, 3-54, 3-51 and 3-52 (35 to 36 sq. m, 16 bunks, 12 to 18
inmates).
60. The applicant did not dispute the cell measurements or the
number of bunks. He disagreed, however, with the figure given by
the Government for the number of inmates. According to him,
between February and December 2000 he stayed in cell No. 4-9 that
housed 18 to 35 inmates and between December 2000 and May 2004 he
was kept in cells measuring approximately 36 sq. m, together with
20 to 40 other detainees. After the new Code of Criminal Procedure
came into effect on 1 July 2002, the number of inmates in his cell
dropped to between 15 and 25. Given the lack of beds, inmates
slept in eight-hour shifts. They waited for their turn sitting on
the concrete floor or on a stool if one was available.
In support of his statements the applicant produced written
depositions by three former cellmates, Mr Abdurakhmon Kayumov, Mr
Sergey Gunin and Mr Yan Kelerman. They stated, in particular, that
in 2003 - 2004 cell No. 3-52 had housed 20 to 30 inmates (Mr
Kayumov's deposition) or even 25 to 35 (Mr Gunin's deposition), as
had cells Nos. 3-51 and 3-53. They also testified that they and
the other detainees had slept in turns.
(b) Sanitary conditions and installations
61. The Government, relying on a certificate of 8 April 2004
from the facility director, submitted that the "sanitary and anti-
epidemic condition of the facility remained satisfactory,
including... in the cells where [the applicant] had been held".
Another certificate of 20 April 2004 showed that "the cells...
were equipped with [a lavatory pan] placed no more than 10 cm
above the floor and separated by a partition of 1.5 m in height
with additional curtains". Running tap water was available and
detainees were permitted to use immersion heaters.
62. The applicant conceded that there had been no outbreaks of
contagious diseases or epidemics. Apart from that, the sanitary
conditions were wholly unsatisfactory. Prisoners infected with
tuberculosis, hepatitis, scabies and the human immunodeficiency
virus (HIV) were occasionally held in his cell. The cells were
infested by lice, bed-bugs, flies, mosquitoes, cockroaches, rats
and mice, but the facility administration did not provide any
repellents or insecticides. Detainees were not given any
toiletries, such as soap, toothbrush, toothpaste or toilet paper,
apart from 100 grams of caustic soda once a week and two plastic
bottles of bleach (1.5 litres each) every two or three months.
Cells had no ventilation systems. In winter they were cold and in
summer it was hot, stuffy and excessively damp inside.
63. The applicant challenged the Government's description of
the toilet facilities as factually untrue. The cast-iron pan was
raised on a pedestal about 50 - 80 cm high and separated from the
living area from one side with a one-metre-high partition. The
person using the toilet was in full view of other inmates. No
curtains were provided; occasionally the inmates hung a sheet but
wardens tore it down and disciplined those responsible. What is
more, the lavatory pan had no seat or cover: inmates stuck an
empty plastic bottle in the hole in order to prevent smells from
spreading. The dining table was fixed to the floor just a few
metres from the pan. His description was corroborated by written
depositions by former cellmates, Mr Kayumov, Mr Gunin, Mr Kelerman
and Mr Sergey Kalenik, and four colour photos showing the lavatory
pan and the dining table from various angles.
(c) Food
64. The Government asserted that "the applicant was fed in
accordance with the established legal norms". It appears from an
undated certificate signed by the facility director that his daily
diet consisted of 100 g of meat, 100 g of fish, 100 g of groats,
20 g of pasta, 20 g of salt, 1 g of tea [sic], 0.5 kg of potatoes,
0.25 kg of vegetables, 0.55 kg of bread.
65. The applicant submitted that the food was of an extremely
low quality. Many a meal only contained so-called balanda, a soup-
like mix of millet, barley and pasta without any fat. Meat was
replaced with a soya substitute. No fresh vegetables were given,
occasionally the evening meal included cooked beetroot, sauerkraut
or pickled cucumbers. Salt and tea were never distributed. Written
depositions by four of the applicant's former cellmates confirmed
these submissions.
(d) Outdoor exercise
66. The parties agreed that the applicant had been entitled to
a daily walk of about one hour. The applicant indicated, however,
that he was not able to go outdoors on days when there were court
hearings.
67. The Government did not describe the outdoor conditions. The
applicant, and four former cellmates in written depositions,
portrayed the following picture of the exercise yards: The yards
were closed premises measuring 12, 26 or 40 sq. m. The opening to
the sky was covered with a metal roof with a one-metre gap between
the roof and the top of the walls. In summer it was extremely hot
and stifling inside as the sun heated the roof. The walls were
coated with so-called shuba, a sort of abrasive concrete lining,
designed to prevent detainees from leaning on the walls. The
entire cell population was brought to the yard at once;
occasionally it was impossible to move around, let alone to
exercise, because of the sheer number of prisoners.
(e) Other issues
68. According to the applicant, metal blinds that prevented
natural light getting into the cells were only removed on 28
December 2002 after a delegation that included a representative of
the Council of Europe had paid a visit to Vladimir detention
facilities. The Government did not contest that information.
(f) Contact with the outside world
69. The applicant's relatives were not permitted to see him
throughout the pre-trial investigation. After the trial began, he
was allowed four short visits by his wife, children, sister and
brother. At these meetings the applicant and his parents were
prohibited from talking in any language other than Russian. The
applicant was likewise prohibited from corresponding with his
relatives other than in Russian: the facility administration
refused to dispatch or hand over letters written in Tajik.
70. The Government explained that these restrictions had been
due to the lack of a staff interpreter from Tajik in the facility.
2. Conditions of the applicant's transport to
and from the courthouse
71. The applicant was transported from the remand centre to the
Vladimir Regional Court for hearings on 205 occasions; of these
hearings, 185 concerned the charges against him and 20
applications for extensions of detention. The applicant offered
the following description of these days, which was corroborated by
written depositions from four former cellmates.
72. On the day of the hearing he was woken up at 4 or 5 a.m. At
about 8 a.m. he was taken from his cell to the so-called "assembly
cell", together with other detainees who had a hearing on that
day. Each "assembly cell" measured 9.2 to 9.9 sq. m and housed 10
to 20 prisoners. "Assembly cells" had no ventilation system and
the air was soon heavy with smoke. At about 9 or 9.30 a.m. the
applicant was taken to a van.
73. The prison van had one collective compartment designed for
four prisoners and six individual compartments of one sq. m. It
was designed to carry ten prisoners. However, it transported
between 15 and 20 and on one occasion 27 detainees. The applicant
was put in an individual compartment together with another
prisoner. Owing to the lack of space, one of them would sit on the
bench and the other on his lap. The route to the Vladimir Regional
Court took one hour and the van called at other facilities on its
way.
74. The applicant did not normally arrive back at the prison
until 6 or 8 p.m. During the day he received no food or outdoor
exercise and was liable to miss out on the shower he was allowed
periodically.
75. The Government submitted that the applicant had been
transported in special prison vans that met the standard
requirements. The route from facility No. OD-1/T-2 to the Vladimir
Regional Court was eight kilometres long and took thirty minutes.
II. Relevant domestic law
76. Until 1 July 2002 criminal-law matters were governed by the
Code of Criminal Procedure of the Russian Soviet Federalist
Socialist Republic (Law of 27 October 1960, "the old CCrP"). From
1 July 2002 the old CCrP was replaced by the Code of Criminal
Procedure of the Russian Federation (Law No. 174-FZ of 18 December
2001, "the new CCrP").
A. Preventive measures
77. "Preventive measures" or "measures of restraint" (меры
пресечения) include an undertaking not to leave a town or region,
personal security, bail and detention on remand (Article 89 of the
old CCrP, Article 98 of the new CCrP).
B. Authorities ordering detention on remand
78. The Russian Constitution of 12 December 1993 establishes
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention on remand
could be taken by a prosecutor or a court (Articles 11, 89 and
96).
The new CCrP requires a judicial decision by a district or town
court on a reasoned request by a prosecutor supported by
appropriate evidence (Article 108 зз 1, 3 - 6).
C. Grounds for ordering detention on remand
79. When deciding whether to remand an accused in custody, the
competent authority is required to consider whether there are
"sufficient grounds to believe" that he or she would abscond
during the investigation or trial or obstruct the establishment of
the truth or re-offend (Article 89 of the old CCrP). It must also
take into account the gravity of the charge, information on the
accused's character, his or her profession, age, state of health,
family status and other circumstances (Article 91 of the old CCrP,
Article 99 of the new CCrP).
80. Before 14 March 2001, detention on remand was authorised if
the accused was charged with a criminal offence carrying a
sentence of at least one year's imprisonment or if there were
"exceptional circumstances" in the case (Article 96). On 14 March
2001 the old CCrP was amended to permit defendants to be remanded
in custody if the charge carried a sentence of at least two years'
imprisonment or if they had previously defaulted or had no
permanent residence in Russia or if their identity could not be
ascertained. The amendments of 14 March 2001 also repealed the
provision that permitted defendants to be remanded in custody on
the sole ground of the dangerous nature of the criminal offence
they committed. The new CCrP reproduced the amended provisions
(Articles 97 з 1 and 108 з 1) and added that a defendant should
not be remanded in custody if a less severe preventive measure was
available.
D. Time-limits for detention on remand
1. Two types of detention on remand
81. The Codes distinguished between two types of detention on
remand: the first being "pending the investigation", that is while
a competent agency - the police or a prosecutor's office -
investigated the case, and the second "before the court" (or
"during the trial"), that is while the case was being tried in
court. Although there was no difference in practice between them
(the detainee was held in the same detention facility), the
calculation of the time-limits was different.
2. Time-limits for detention "pending the investigation"
82. After arrest the suspect is placed in custody "pending the
investigation". The maximum permitted period of detention "pending
the investigation" is two months but it can be extended for up to
eighteen months in "exceptional circumstances". Extensions were
authorised by prosecutors of ascending hierarchical levels (under
the old CCrP) but must now be authorised by judicial decisions
taken by courts of ascending levels (under the new CCrP). No
extension of detention "pending the investigation" beyond eighteen
months is possible (Article 97 of the old CCrP, Article 109 з 4 of
the new CCrP).
83. The period of detention "pending the investigation" is
calculated to the day when the prosecutor sent the case to the
trial court (Article 97 of the old CCrP, Article 109 з 9 of the
new CCrP).
84. Access to the file materials is to be granted no later than
one month before the expiry of the authorised detention period
(Article 97 of the old CCrP, Article 109 з 5 of the new CCrP). If
the defendant needs more time to study the case-file, a judge, on
a request by a prosecutor, may grant an extension of detention
until such time as the file has been read in full and the case
sent for trial (Article 97 of the old CCrP, Article 109 з 8 (1) of
the new CCrP). Under the old CCrP, such an extension could not be
granted for longer than six months.
85. Under the old CCrP, the trial court had the right to remit
the case for an "additional investigation" if it established that
procedural defects existed that could not be remedied at the
trial. In such cases the defendant's detention was again
classified as "pending the investigation" and the relevant time-
limit continued to apply. If, however, the case was remitted for
an additional investigation, but the investigators had already
used up all the time authorised for detention "pending the
investigation", a supervising prosecutor could nevertheless extend
the detention period for one additional month starting from the
date he received the case. Subsequent extensions could only be
granted if the detention "pending the investigation" had not
exceeded eighteen months (Article 97).
3. Time-limits for detention "before
the court"/"during the trial"
86. From the date the prosecutor forwards the case to the trial
court, the defendant's detention is "before the court" (or "during
the trial").
87. Before 14 March 2001 the old CCrP set no time-limit for
detention "during the trial". On 14 March 2001 a new Article 239-1
was inserted which established that the period of detention
"during the trial" could not generally exceed six months from the
date the court received the file. However, if there was evidence
to show that the defendant's release might impede a thorough,
complete and objective examination of the case, a court could - of
its own motion or on a request by a prosecutor - extend the
detention by no longer than three months. These provisions did not
apply to defendants charged with particularly serious criminal
offences.
88. The new CCrP establishes that the term of detention "during
the trial" is calculated from the date the court received the file
and to the date the judgment is given. The period of detention
"during the trial" may not normally exceed six months, but if the
case concerns serious or particularly serious criminal offences,
the trial court may approve one or more extensions of no longer
than three months each (Article 255 зз 2 and 3).
E. Proceedings to examine the lawfulness of detention
During detention "pending the investigation"
89. Under the old CCrP, the detainee or his or her counsel or
representative could challenge the detention order issued by a
prosecutor, and any subsequent extension order, before a court.
The judge was required to review the lawfulness of and
justification for a detention or extension order no later than
three days after receipt of the relevant papers. The review was to
be conducted in camera in the presence of a prosecutor and the
detainee's counsel or representative. The detainee was to be
summoned and a review in his absence was only permissible in
exceptional circumstances if the detainee waived his right to be
present of his own free will. The judge could either dismiss the
challenge or revoke the pre-trial detention and order the
detainee's release (Article 220-1).
An appeal to a higher court lay against the judge's decision.
It had to be examined within the same time-limit as appeals
against a judgment on the merits (see paragraph 96 below) (Article
331 in fine).
90. Under the new CCrP, an appeal may be lodged with a higher
court within three days against a judicial decision ordering or
extending detention on remand. The appeal court must decide the
appeal within three days after its receipt (Article 108 з 10).
During the trial
91. Upon receipt of the case-file, the judge must determine, in
particular, whether the defendant should remain in custody or be
released pending trial (Articles 222 з 5 and 230 of the old CCrP,
Articles 228 (3) and 231 з 2 (6) of the new CCrP) and rule on any
application by the defendant for release (Article 223 of the old
CCrP). If the application was refused, a fresh application could
be made once the trial had commenced (Article 223 of the old
CCrP).
92. At any time during the trial the court may order, vary or
revoke any preventive measure, including detention on remand
(Article 260 of the old CCrP, Article 255 з 1 of the new CCrP).
Any such decision must be given in the deliberations room and
signed by all the judges in the formation (Article 261 of the old
CCrP, Article 256 of the new CCrP).
93. An appeal against such a decision lies to the higher court.
It must be lodged within ten days and examined within the same
time-limit as an appeal against the judgment on the merits
(Article 331 of the old CCrP, Article 255 з 4 of the new CCrP -
see paragraph 96 below).
F. Time-limits for trial
94. Under the old CCrP, within fourteen days after receipt of
the case-file (if the defendant was in custody), the judge was
required either: (1) to fix the trial date; (2) to return the case
for an additional investigation; (3) to stay or discontinue the
proceedings; or (4) to refer the case to a court having
jurisdiction to hear it (Article 221). The new CCrP empowers the
judge, within the same time-limit, (1) to refer the case to a
competent court; (2) to fix a date for a preliminary hearing
(предварительное слушание); or (3) to fix a date for trial
(Article 227). The trial must begin no later than fourteen days
after the judge has fixed the trial date (Article 239 of the old
CCrP, Article 233 з 1 of the new CCrP). There are no restrictions
on fixing the date of a preliminary hearing.
95. The duration of the trial is not limited in time.
96. Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten
days of its receipt. In exceptional circumstances or in complex
cases or in proceedings before the Supreme Court this time-limit
could be extended by up to two months (Article 333). No further
extensions were possible.
The new CCrP establishes that the appeal court must start the
examination of the appeal no later than one month after its
receipt (Article 374).
III. Relevant international instruments
97. The Standard Minimum Rules for the Treatment of Prisoners,
adopted by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolution 663
C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide,
in particular, as follows:
"10. All accommodation provided for the use of prisoners and in
particular all sleeping accommodation shall meet all requirements
of health, due regard being paid to climatic conditions and
particularly to cubic content of air, minimum floor space,
lighting, heating and ventilation...
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners
to read or work by natural light, and shall be so constructed that
they can allow the entrance of fresh air whether or not there is
artificial ventilation;
(b) Artificial light shall be provided sufficient for the
prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable
every prisoner to comply with the needs of nature when necessary
and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided
so that every prisoner may be enabled and required to have a bath
or shower, at a temperature suitable to the climate, as frequently
as necessary for general hygiene according to season and
geographical region, but at least once a week in a temperate
climate.
14. All pans of an institution regularly used by prisoners
shall be properly maintained and kept scrupulously clean at all
time.
15. Prisoners shall be required to keep their persons clean,
and to this end they shall be provided with water and with such
toilet articles as are necessary for health and cleanliness...
19. Every prisoner shall, in accordance with local or national
standards, be provided with a separate bed, and with separate and
sufficient bedding which shall be clean when issued, kept in good
order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration
at the usual hours with food of nutritional value adequate for
health and strength, of wholesome quality and well prepared and
served.
(2) Drinking water shall be available to every prisoner
whenever he needs it.
21. (1) Every prisoner who is not employed in outdoor work
shall have at least one hour of suitable exercise in the open air
daily if the weather permits.
45... (2) The transport of prisoners in conveyances with
inadequate ventilation or light, or in any way which would subject
them to unnecessary physical hardship, shall be prohibited..."
98. The relevant extracts from the General Reports prepared 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 violations of Article 3 of the Convention
99. The applicant complained that the conditions of his
detention in facility No. OD-1/T-2 "Vladimirskiy Tsentral" and
transport to and from the courthouse were in breach of Article 3
of the Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
A. Conditions of detention in facility No. OD-1/T-2
1. The parties' submissions
100. The Government submitted that, while in facility No. OD-
1/T-2 the applicant had had at all times no less than 2 sq. m for
himself. He had been assigned an individual bunk and given
bedding. The sanitary conditions were satisfactory, there was
running tap water and detainees could use their own immersion
heaters. The applicant had had at least one hour of outdoor
activity daily and the food was in compliance with the applicable
standards. The applicant had been permitted to talk to his
relatives, and to correspond with them, in Russian because there
was no staff interpreter from Tajik and because the law did not
provide for the presence of an interpreter during parental visits.
The applicant had not complained of harassment by or threats from
other detainees or the facility wardens.
101. The applicant challenged the Government's submissions as
factually inaccurate. He indicated that the number of inmates per
cell had been significantly greater than that suggested by the
Government, that cells were infected with parasites and
excessively humid. The placement and partitioning of the lavatory
pan offered no privacy whatsoever and contributed to a further
infestation of the cell. The quality of food was wholly
unsatisfactory. There was no real opportunity for outdoor exercise
because the exercise yards were overcrowded and also covered with
metal roofs that severely limited access to fresh air. The
applicant submitted that the conditions of his detention fell foul
of paragraphs 12, 15 and 20 (1) and (2) of the Standard Minimum
Rules for the Treatment of Prisoners (cited above). He considered
that the requirement to speak in Russian to his small children who
spoke only Tajik had been degrading and humiliating. He finally
indicated that, upon his release, he had been diagnosed with
several diseases, such as hypertension and prostatitis, that had
been contracted during his detention.
The Court's assessment
102. 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 [GC],
No. 26772/95, з 119, ECHR 2000-IV). However, to fall under Article
3 of the Convention, 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).
103. 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 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 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, one must consider their cumulative
effects as well as the applicant's specific allegations (Dougoz v.
Greece, No. 40907/98, з 46, ECHR 2001-II). The duration of
detention is also a relevant factor.
104. The Court notes that in the present case the parties have
disputed the actual conditions of the applicant's detention at
facility No. OD-1/T-2 of Vladimir. However, there is no need for
the Court to establish the truthfulness of each and every
allegation, because it finds a violation of Article 3 on the basis
of the facts that have been presented or are undisputed by the
respondent Government, for the following reasons.
105. The main characteristic, which the parties have agreed
upon, are the measurements of the cells. The applicant claimed
that the cell population severely exceeded their design capacity;
the Government produced a certificate from the facility director
showing that at times the number of inmates was greater than that
of the available bunks (cells Nos. 4-13, 4-9, 3-3, 3-51, see
paragraph 59 above). It follows that the detainees, including the
applicant, had to share the sleeping facilities, taking turns to
rest. In smaller, 12 or 24 sq. m cells in wing No. 4 where the
applicant was kept until December 2000, inmates were afforded less
than 2 sq. m of personal space, and in the larger capacity
dormitories of wing No. 3, where the applicant stayed until his
release in May 2004, detainees had less than 3 sq. m of personal
space, even when the cell was filled below its design capacity.
The parties also agree that, save for one hour of daily outdoor
exercise, for the remainder of the day the applicant was locked in
the cell which contained all the facilities used by prisoners on a
daily basis, such as the washbasin, lavatory and eating utensils.
The applicant was held in these conditions for more than four
years and three months.
106. In this connection the Court notes that in the Peers case
even a much bigger cell (7 sq. m for two inmates) was considered a
relevant factor in finding a violation of Article 3, albeit in
that case the problem of space was coupled with an established
lack of ventilation and lighting (Peers v. Greece, No. 28524/95,
зз 70 - 72, ECHR 2001-III). The present situation is also
comparable with that in the Kalashnikov case, where the applicant
was confined to a space measuring less than 2 sq. m. In that case
the Court held that such a degree of overcrowding in itself raised
an issue under Article 3 of the Convention (Kalashnikov v. Russia,
No. 47095/99, зз 96 - 97, ECHR 2002-VI). By contrast, in other
cases no violation of Article 3 was found, as the restricted space
for sleeping was compensated for 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).
107. The Court considers the lack of space to be the focal
point of its analysis. The fact that the applicant was obliged to
live, sleep and use the toilet in the same cell with so little
personal space was itself sufficient to cause distress or hardship
of an intensity exceeding the unavoidable level of suffering
inherent in detention, and to arouse within him feelings of
anguish and inferiority capable of humiliating and debasing him
(Peers and Kalashnikov, cited above, loc. cit.; see also the CPT's
11th General Report, з 29). These feelings were further
exacerbated by the inordinate length of his detention.
108. Furthermore, while in the present case it cannot be
established "beyond reasonable doubt" that the ventilation,
heating, lighting or sanitary conditions in the facility were
unacceptable from the standpoint of Article 3, the Court notes
with concern that the lavatory had no flush system, that until
December 2002 the cell windows were covered with metal shutters
blocking access to fresh air and natural light (cf. CPT's 11th
General Report, з 30) and that the applicant was only permitted to
talk to his close relatives in a language they did not master,
which made contact with his family more difficult. The Government
did not suggest that such restrictions were based on security
concerns of an appreciable nature (cf. CPT's 2nd General Report, з
51). These aspects combined with the lack of personal space show
that the applicant's detention conditions went beyond the
threshold tolerated by Article 3 of the Convention.
109. The Court therefore finds that there has been a violation
of Article 3 of the Convention as regards the conditions of the
applicant's detention in facility No. OD-1/T-2.
B. Conditions of transport between the facility
and the courthouse
1. The parties' submissions
110. The Government submitted that the conditions of transport
were compatible with domestic standards and that the convoy
service personnel had not committed any breaches of applicable
laws.
111. The applicant claimed that the conditions of transport
between the detention facility and the Vladimir Regional Court
were inhuman and degrading. "Assembly cells" and passenger
compartments were severely overcrowded and gave no access to
natural light or air. He was not given food or drink for the
entire day and the cumulative effect of these conditions was
mental and physical exhaustion. In his view, such conditions were
incompatible with paragraph 45 (2) of the Standard Minimum Rules
for the Treatment of Prisoners.
2. The Court's assessment
112. The Court reiterates that allegations of ill-treatment
must be supported by appropriate evidence. In assessing evidence,
the Court has generally applied the standard of proof "beyond
reasonable doubt". However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see
Salman v. Turkey [GC], No. 21986/93, з 100, ECHR 2000-VII).
113. The Court notes that the only account of the conditions of
transport from the remand facility to the Vladimir Regional Court
is that furnished by the applicant. His account is corroborated by
the written statements of four former cellmates. The Court
reiterates that Convention proceedings, such as the present
application, do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he who
alleges something must prove that allegation) because in certain
instances the respondent Government alone have access to
information capable of corroborating or refuting these
allegations. A failure on a Government's part to submit such
information without a satisfactory explanation may give rise to
the drawing of inferences as to the well-foundedness of the
applicant's allegations (see Ahmet {Ozkan} and Others v. Turkey,
No. 21689/93, з 426, 6 April 2004).
114. It is true that in the present case the applicant was not
able to take exact measurements of the prison-van compartments or
obtain certificates showing the occupancy level. However, the
Government could have readily submitted details in support of
their contentions, but did not do so and gave no reasons for
withholding such information. In fact, they confined themselves to
asserting that the conditions were compatible with applicable
standards and that the travel time was half as long as that
claimed by the applicant. No copy of the standards or regulations
on prison vans was submitted. In these circumstances the Court
will examine the merits of the complaint on the basis of the
applicant's submissions.
115. The applicant submitted that on the days of court hearings
he was transported to the courthouse by a prison van in which he
shared a 1 sq. m "individual" compartment with another prisoner.
He received no food during the entire day and missed out on
outdoor exercise and on occasions the chance to take a shower.
116. The Court has not previously examined the compatibility of
transport conditions as such with the requirements of Article 3 of
the Convention (however, as regards handcuffing and/or
blindfolding of detainees during transport, see {Ocalan} v. Turkey
[GC], No. 46221/99, зз 182 - 184, ECHR 2005-...; and Raninen v.
Finland, judgment of 16 December 1997, Reports 1997-VIII, зз 56 -
59). It will therefore seek guidance from the findings of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment (CPT).
117. As regards the transport of prisoners, the CPT has
considered individual compartments measuring 0.4, 0.5 or even 0.8
sq. m to be unsuitable for transporting a person, no matter how
short the duration (see CPT/Inf (2004) 36 [Azerbaijan], з 152;
CPT/Inf (2004) 12 [Luxembourg], з 19; CPT/Inf (2002) 23 [Ukraine],
з 129; CPT/Inf (2001) 22 [Lithuania], з 118; CPT/Inf (98) 13
[Poland], з 68). In the present case the individual compartments
in the prison van (measuring one sq. m) would not appear to have
been in breach of the CPT's standards, assuming that the design
capacity was not exceeded and that they were sufficiently lit,
ventilated and heated and equipped with adequate seating and
fixtures that would prevent prisoners from losing their balance
when the vehicle moves (cf. CPT/Inf (2002) 36 [Slovenia], з 95).
118. However, the applicant had to share the individual
compartment with another detainee, the two men taking turns to sit
on the other's lap. The above-mentioned CPT's findings suggest
that it would not have found that situation acceptable. The Court
likewise considers that the placement of two prisoners in a one
sq. m compartment with only one seat was unacceptable. The
Government claimed that the journey took only thirty minutes, but
the applicant said that the van called at other facilities on the
way. As the detainees remained inside the van during that time, it
would be appropriate to base the assessment on the applicant's
submission that the journey lasted up to one hour. In any event,
the Court finds that such transport arrangements are
impermissible, irrespective of the duration.
119. The Court observes that the applicant had to endure these
crammed conditions twice a day, on the way to and from the
courthouse and that he was transported in that van no fewer than
200 times in four years of detention. On those days he received no
food and missed outdoor exercise. It is also relevant to the
Court's assessment that the applicant continued to be subjected to
such treatment during his trial or at the hearings of applications
for his detention to be extended, that is when he most needed his
powers of concentration and mental alertness.
120. The Court finds that the treatment to which the applicant
was subjected during his transport to and from the Vladimir
Regional Court exceeded the minimum level of severity and that
there has been a violation of Article 3 of the Convention.
II. Alleged violations of Article 5 зз 1 of the Convention
121. The applicant complained under Article 5 з 1 (c) of the
Convention that his detention on remand was not lawful. The
relevant parts of Article 5 read as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an
offence or fleeing after having done so..."
1. The parties' submissions
122. The applicant contended that on 8 August 2001 the Supreme
Court had quashed the extension order of 28 April 2001 as unlawful
and remitted the issue of his detention for re-examination;
accordingly, his detention from 28 April 2001 onwards was not
"lawful" within the meaning of Article 5 з 1. After the case was
sent for trial on 4 September 2001, it took the Regional Court
more than four months - instead of the fourteen days required by
the old CCrP - to hold the first hearing and examine the request
for release. The decision of 9 January 2002 was deficient in its
reasoning: the applicant was remanded in custody solely on account
of the gravity of the charges against him. The applicant further
submitted that neither the Regional Court's decision of 13 March
2002 nor the Supreme Court's decision of 12 September 2002 had
addressed the arguments for or against his release. He indicated
that on 12 September 2002 the Supreme Court had heard the appeal
for thirty minutes only. The applicant complained that on 18
November 2002 the Regional Court had extended his detention
retrospectively to cover the preceding 2 months and 15 days and
that a similar retrospective extension had been made on 4 December
2002 in respect of the previous day.
123. The Government averred that the entire term of detention
was compatible with the domestic procedural rules and free from
arbitrariness. On 28 April 2001 the Vladimir Regional Court had
authorised the applicant's detention until 4 September 2001 so as
to afford him additional time to read the case file. On 8 August
2001 the Supreme Court quashed that decision on procedural grounds
and held that the applicant should remain in custody. From 4
September 2001 to 9 January 2002 the Vladimir Regional Court
examined the applicant's case. From 13 March to 7 October 2002 the
case was examined by the Supreme Court of the Russian Federation.
In the Government's opinion, the Russian rules of criminal
procedure did not require the applicant's detention to be extended
during the latter period. On 12 September 2002 the Supreme Court
returned the case file to the Vladimir Regional Court which
received it on 7 October 2002. By that time the new CCrP had come
into effect, and a new hearing was scheduled for 18 November 2002.
On the latter date the applicant's detention was extended until 3
December 2002.
2. The Court's assessment
(a) General principles
124. The Court reiterates that the expressions "lawful" and "in
accordance with a procedure prescribed by law" in Article 5 з 1
essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof.
However, the "lawfulness" of detention under domestic law is
not always the decisive element. The Court must in addition be
satisfied that detention during the period under consideration was
compatible with the purpose of Article 5 з 1 of the Convention,
which is to prevent persons from being deprived of their liberty
in an arbitrary fashion.
125. The Court must moreover ascertain whether domestic law
itself is in conformity with the Convention, including the general
principles expressed or implied therein. On this last point, the
Court stresses that, where deprivation of liberty is concerned, it
is particularly important that the general principle of legal
certainty be satisfied. It is therefore essential that the
conditions for deprivation of liberty under domestic law be
clearly defined and that the law itself be foreseeable in its
application, so that it meets the standard of "lawfulness" set by
the Convention, a standard which requires that all law be
sufficiently precise to allow the person - if need be, with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may
entail (see {Jecius} v. Lithuania, No. 34578/97, з 56, ECHR 2000-
IX; Baranowski v. Poland, No. 28358/95, зз 50 - 52, ECHR 2000-
III).
(b) Scope of the Court's review
126. In its decision of 22 February 2005 on the admissibility
of the present application, the Court declared admissible the
applicant's complaints concerning the lawfulness of his detention
on remand after 4 May 2001. The most recent period of detention
which the applicant complained about ended on 4 December 2002.
Accordingly, the Court will examine the lawfulness of the
applicant's detention on remand from 4 May 2001 to 4 December
2002.
(c) Detention on remand from 4 May to 8 August 2001
127. The Court observes that on 28 April 2001 the Vladimir
Regional Court, on a request by a prosecutor, extended the
applicant's detention until 4 September 2001. On 8 August 2001 the
Supreme Court quashed the decision because of substantial
violations of the rules of criminal procedure and ordered a re-
examination of the issue of detention. On 15 August 2002 the
Regional Court reconsidered the request and ordered the
applicant's detention from 4 May to 4 September 2001.
128. The issue to be determined is whether the detention in
that period was "lawful", including whether it complied with "a
procedure prescribed by law". The Court reiterates that a period
of detention will in principle be lawful if carried out pursuant
to a court order. A subsequent finding that the court erred under
domestic law in making the order will not necessarily
retrospectively affect the validity of the intervening period of
detention. For this reason, the Convention organs have
consistently refused to uphold applications from persons convicted
of criminal offences who complain that their convictions or
sentences were found by the appellate courts to have been based on
errors of fact or law (see Benham v. the United Kingdom, judgment
of 10 June 1996, Reports 1996-III, з 42).
129. In the present case the Court will consider whether the
detention order of 28 April 2001 constituted a lawful basis for
the applicant's detention until it was quashed on 8 August 2001.
The mere fact that the order was set aside on appeal did not in
itself affect the lawfulness of the detention in the preceding
period. For the assessment of compliance with Article 5 з 1 of the
Convention the basic distinction has to be made between ex facie
invalid detention orders - for example, given by a court in excess
of jurisdiction or where the interested party did not have proper
notice of the hearing - and detention orders which are prima facie
valid and effective unless and until they have been overturned by
a higher court (Benham, cited above, зз 43 and 46; Lloyd and
Others v. the United Kingdom, Nos. 29798/96 et seq., зз 108, 113
and 116, cf. also з 83, 1 March 2005).
130. It has not been alleged that on 28 April 2001 the Regional
Court acted in excess of its jurisdiction. Indeed, as a matter of
domestic law, it had the authority to examine the prosecutor's
application for an extension of the applicant's detention and to
grant a further extension, not exceeding six months, until such
time as the applicant had finished reading the file and the case
had been sent for trial (see paragraph 84 above).
131. Furthermore, the Court finds that applicant's detention on
the basis of the order of 28 April 2001 cannot be said to have
been arbitrary as the court gave certain grounds justifying the
continued detention on remand. The sufficiency and relevance of
these grounds will be discussed below from the standpoint of
Article 5 з 3 of the Convention.
132. It has not therefore been established that, in issuing the
detention order of 28 April 2001, the District Court acted in bad
faith, or that it neglected to attempt to apply the relevant
legislation correctly. The fact that certain flaws in the
procedure were found on appeal does not in itself mean that the
detention was unlawful (see Gaidjurgis v. Lithuania (dec.), No.
49098/99, 16 January 2001; Benham, cited above, з 47; cf. also
Bozano v. France, judgment of 18 December 1986, Series A No. 111,
з 59).
133. In these circumstances, the Court finds that there was no
violation of Article 5 з 1 of the Convention on account of the
applicant's detention on remand from 4 May to 8 August 2001.
(d) Detention on remand from 8 August to 4 September 2001
134. The Court notes that on 8 August 2001 the Supreme Court,
having quashed the Regional Court's decision, held that the
preventive measure imposed on the applicant "should remain
unchanged". The Government maintained that the Supreme Court's
decision constituted a "lawful" basis for the applicant's
detention after 8 August 2001.
135. The Court notes that in several cases against Lithuania it
found that the trial court's decision to maintain a preventive
measure "unchanged" had not, as such, breached Article 5 з 1 in so
far as the trial court "had acted within its jurisdiction... [and]
had power to make an appropriate order" ({Jecius}, cited above, з
69; {Stasaitis} v. Lithuania (dec.), No. 47679/99, 28 November
2000; {Karalevicius} v. Lithuania (dec.), No. 53254/99, 6 June
2002). In the {Stasaitis} judgment it noted, however, that "the
absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time may
be incompatible with the principle of the protection from
arbitrariness enshrined in Article 5 з 1" ({Stasaitis} v.
Lithuania, No. 47679/99, з 67, 21 March 2002).
136. The Court observes that the Supreme Court did not give any
reasons for its decision to remand the applicant in custody. Nor
did it set a time-limit either for the continued detention or for
a re-examination of the issue of detention by the Regional Court.
As it happened, the Regional Court did not give a new decision
until more than one year later, on 15 August 2002, and the Supreme
Court upheld that decision in the final instance in January 2003.
Leaving aside the concurrent developments in the applicant's case
(discussed below), it transpires that for more than a year the
applicant remained in a state of uncertainty as to the grounds for
his detention after 8 August 2001. The Supreme Court's failure to
give reasons for its decision was made all the more regrettable by
the fact that the applicant had by then spent two years and six
months in custody without a valid judicial decision setting out
the grounds for his detention in detail.
137. In these circumstances, the Court considers that the
Supreme Court's decision of 8 August 2001 did not comply with the
requirements of clarity, foreseeability and protection from
arbitrariness, which together constitute the essential elements of
the "lawfulness" of detention within the meaning of Article 5 з 1.
138. It remains to be determined whether the Regional Court's
decision of 15 August 2002, as upheld on appeal on 23 January
2003, could have constituted a "lawful" basis for the applicant's
detention from 8 August to 4 September 2001.
139. As noted above, the decision of 15 August 2002 was issued
more than a year after the detention period authorised therein had
lapsed. The Government did not indicate any domestic legal
provision that permitted a decision to be taken authorising a
period of detention retrospectively. On the contrary, the general
habeas corpus provisions required the director of the remand
centre to release any detainee once his statutory detention period
had expired without any order being made for its extension
(Article 11 of the old CCrP).
140. Such has been also the view of the Russian Constitutional
Court, which found that Russian law did not contain "any
provisions permitting the court to take a decision extending the
defendant's detention on remand [some time] after once the
previously authorised time-limit has expired, in which event the
person is detained for a period without a judicial decision" (see
paragraph 56 above).
141. It follows that the applicant's detention, in so far as it
had been authorised by a judicial decision issued in respect of
the preceding period, was not "lawful" under domestic law.
142. Furthermore, the Court considers that any ex post facto
authorisation of detention on remand is incompatible with the
"right to security of person" as it is necessarily tainted with
arbitrariness. Permitting a prisoner to languish in detention on
remand without a judicial decision based on concrete grounds and
without setting a specific time-limit would be tantamount to
overriding Article 5, a provision which makes detention an
exceptional departure from the right to liberty and one that is
only permissible in exhaustively enumerated and strictly defined
cases.
143. The Court therefore considers that there was a violation
of Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 8 August to 4 September 2001.
(e) Detention on remand from 4 September 2001 to 9 January 2002
144. The Court further notes, and it has not been disputed by
the parties, that between the date of expiry of the authorised
detention period on 4 September 2001 and the Vladimir Regional
Court's subsequent decision of 9 January 2002 on the application
for release, there was no decision - either by a prosecutor or by
a judge - authorising the applicant's detention. It is also common
ground that in that period the applicant was held in detention on
the basis of the fact that the criminal case against him had been
referred to the court competent to deal with the case.
145. The Government maintained that the detention was lawful
because it complied with the substantive and procedural provisions
of the rules of criminal procedure. The Regional Court was not
required to extend the applicant's detention or otherwise validate
it.
146. The Court has already examined and found a violation of
Article 5 з 1 in a number of cases concerning the practice of
holding defendants in custody solely on the basis of the fact that
a bill of indictment has been lodged with the court competent to
try the case (see Baranowski, cited above, зз 53 - 58; {Jecius},
cited above, зз 60 - 64). It held that the practice of keeping
defendants in detention without a specific legal basis or clear
rules governing their situation - with the result that they may be
deprived of their liberty for an unlimited period without judicial
authorisation - is incompatible with the principles of legal
certainty and protection from arbitrariness, which are common
threads throughout the Convention and the rule of law (ibid.).
147. The Court sees no reason to reach a different conclusion
in the present case. Admittedly, unlike the Polish law at the
relevant time which set no time-limit for the detention after a
bill of indictment had been lodged with the court (see Baranowski,
зз 31 - 35, in particular, the last paragraph of the Polish
Supreme Court's resolution of 6 February 1997), the Russian rules
of criminal procedure set a time-limit. Within fourteen days of
receipt of the file the court has to determine whether the case is
ready for trial and, if so, fix the hearing date and order the
defendant's release or continued detention (see paragraphs 91 and
94 above). Thus, detention without an order was limited to
fourteen days maximum, at least in theory.
148. The Court, however, is not persuaded that the existence of
the time-limit in Russian law does in fact distinguish the present
case from the Baranowski and {Jecius} cases.
149. Firstly, for the detention to meet the standard of
"lawfulness", it must have a basis in domestic law (see paragraph
124 above). The Government, however, did not point to any legal
provision which permitted an accused to continue to be held once
the authorised detention period had expired. The Court notes that
under the Russian Constitution and rules of criminal procedure the
power to order or prolong detention on remand was vested in
prosecutors and courts (see paragraph 78 above). No exceptions to
that rule were permitted or provided for, no matter how short the
duration of the detention. As noted above, during the relevant
period there was neither a prosecutor's order nor a judicial
decision authorising the applicant's detention. It follows that
the applicant was in a legal vacuum that was not covered by any
domestic legal provision.
150. Furthermore, as in the present case, in which the Vladimir
Regional Court took more than four months to decide on a
preventive measure, the fourteen-day time-limit was not complied
with in practice. The Government did not offer any explanation for
the delay.
151. It follows that during the period from 4 September 2001 to
9 January 2002 there was no valid domestic decision or other
"lawful" basis for the applicant's detention on remand. By itself,
the fact that the case had been sent to the court for trial did
not constitute a "lawful" basis, within the meaning of Article 5 з
1 of the Convention, for the applicant's continued detention.
There has thus been a violation of Article 5 з 1 of the Convention
in respect of that period.
(f) Detention on remand from 9 January to 13 March 2002
152. The Court notes that on 9 January 2002 the Vladimir
Regional Court fixed the date for the trial to commence and
rejected the applicant's application for release. It remanded the
applicant and his co-defendants in custody because of the gravity
of the charges against them.
The trial court acted within its powers in making that decision
and there is nothing to suggest that it was invalid or unlawful
under domestic law. The question whether the reasons for the
decision were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 з 3. In the
{Stasaitis} decision (cited above) the Court accepted that a
similar decision by a trial court was compatible with the
requirements of Article 5 з 1 of the Convention. There is nothing
in the present case to warrant a different conclusion.
153. The Court finds that there has been no violation of
Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 9 January to 13 March 2002.
(g) Detention on remand from 13 March to 12 September 2002
154. The Court notes that on 13 March 2002 the Vladimir
Regional Court identified certain procedural defects and returned
the case to the prosecution for them to be remedied. It extended
the applicant's detention for an indefinite period. The applicant
appealed, arguing, in particular, that the investigators had
already used up all the time permitted for detention "pending the
investigation" and no further extensions were permissible. On 12
September 2002 the Supreme Court quashed the Regional Court's
decision on procedural grounds, without examining the applicant's
arguments pertaining to the lawfulness of his detention.
155. The Court observes that the rules on detention at the time
permitted up to eighteen months' detention "pending the
investigation", plus up to six months when authorised by a
judicial decision if the defendants needed more time to study the
file, and an additional month when authorised by a supervising
prosecutor if the case was returned for an additional
investigation (see paragraphs 82 - 85 above).
156. Turning to the present case, the Court notes that the
eighteen months' detention "pending the investigation" expired on
4 April 2001 <*>. The prosecutor then authorised an additional
month of custody until 4 May 2001 and thereafter the trial court
exercised its right to grant a further four-month extension until
4 September 2001. It follows that the authorities exhausted the
legal possibilities for extending the applicant's detention
"pending the investigation". In these circumstances, no further
extension appears to have been possible under domestic law.
--------------------------------
<*> The applicant was taken into custody on 22 January 1999 and
by 4 April 2001 had already spent 2 years, 2 months and 13 days in
detention. However, the detention "pending the investigation" did
not include the period from 21 June 2000 to 28 February 2001 when
the case was technically "before the [trial] court".
157. The Government did not indicate any legal provision that
permitted a defendant to be held in custody after the expiry of
the above time-limits. The Court notes that the Regional Court's
decision of 13 March 2002 was extremely laconic with regard to the
issue of detention and made no reference to any legal provision
which would have permitted the applicant's further detention. It
follows that the decision did not offer sufficient protection from
arbitrariness and failed to satisfy the standard of "lawfulness"
required under Article 5 з 1 of the Convention.
158. The Court therefore finds that there has been a violation
of Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 13 March to 12 September 2002.
(h) Detention on remand from 12 September 2002 to 18 November
2002
159. The Court notes that on 12 September 2002 the Supreme
Court instructed the Regional Court to proceed with the trial and
confirmed that the defendants should remain in custody. It follows
that from that date onwards, the applicant's detention was "during
the trial".
It is relevant here to recall that on 13 March 2002, the final
day of the applicant's previous period in detention "during the
trial", the applicant had already been in that type of detention
for six months and several days (starting from the date the case
was referred for trial in September 2001). At that time this
situation was not unlawful under domestic law because the six-
month time-limit for detention "during the trial" in the old CCrP
did not apply to defendants who, like the applicant, were charged
with particularly serious crimes (see paragraph 87 above).
However, by the time of the Supreme Court's decision of 12
September 2002 ordering the applicant's continued detention
"during the trial", the new CCrP was already effective. After the
expiry of the initial six months it required the trial court to
issue a separate decision extending the detention "during the
trial" (see paragraph 88 above).
160. The Government claimed that the applicant's detention was
covered by the Supreme Court's decision up to 7 October 2002, on
which date the case-file reached the Regional Court, and
thereafter by the fact that the first hearing had been fixed for
18 November 2002. Accepting, for the sake of argument, the
Government's explanation, the Court considers that in such
eventuality the applicant's detention after 7 October 2002 would
have been incompatible with Article 5 з 1 of the Convention
because the Supreme Court's decision of 12 September 2002 would
have ceased to apply and no other order for detention had been
issued. In this connection the Court refers to its findings in
paragraphs 146 - 151 above in respect of a similar period of
detention and notes that the new CCrP regrettably inherited from
the old CCrP the lack of clear rules governing the detainee's
situation after the case had been sent for trial.
161. In any event, the Government's explanation does not
satisfy the Court. It observes that on 18 November 2002 the
Regional Court extended the applicant's detention "for a further
three months, until 3 December 2002". This formula implies, by
converse implication, that the trial court did not consider either
the Supreme Court's decision of 12 September 2002 or the fact that
it had received the file on 7 October 2002 as valid grounds for
the applicant's detention and that it felt itself obliged to
provide a different basis for his detention during the preceding
two months and three weeks.
162. In the Court's view, the Regional Court's decision of 18
November 2002 amounted to an acknowledgement of the fact that the
applicant's detention in the preceding period had lacked a
sufficiently clear legal basis. The applicant was not therefore
afforded sufficient protection from arbitrariness to satisfy the
requirements of Article 5 з 1 of the Convention. The Regional
Court's decision of 18 November 2002 could not remedy the lack of
a "lawful" basis in the preceding period as it is incompatible
with both domestic law and the Convention guarantees to issue a
detention order with retrospective effect (see paragraphs 139 -
142 above). In any event, the decision of 18 November 2002 was
subsequently quashed by the Supreme Court because of the Regional
Court's failure to conform to the procedural requirements (see
below).
163. The Court finds, accordingly, that there has been a
violation of Article 5 з 1 of the Convention on account of the
applicant's detention from 12 September to 18 November 2002.
(i) Detention on remand from 18 November to 4 December 2002
164. The Court notes that on 18 November 2002 the Vladimir
Regional Court, sitting in a single-judge formation, authorised
the applicant's detention on remand until 3 December 2002. The
applicant alleged, in particular, that his detention from midnight
on 3 December to 4 December 2002, when the Regional Court granted
a further extension, was been covered by any detention order and
had therefore been unlawful.
165. The Court reiterates that, for detention to be "lawful"
within the meaning of Article 5 з 1, it has to conform to both the
substantive and procedural rules of the domestic law (see
paragraph 124 above).
The Court notes that the Regional Court's detention order of 18
November 2002 was quashed by the Supreme Court on 21 May 2005
because it had been given by an incomplete formation, in breach of
the domestic rules of criminal procedure. This indicates that the
court, sitting in a single-judge formation, did not have
jurisdiction to order the applicant's continued detention and that
the order of 18 November 2002 was null and void ab initio (see
paragraph 129 above).
It follows that the decision of 18 November 2002 could not have
formed a "lawful" basis for the applicant's detention on remand
after that date.
166. In the absence of any other decision that could have
served as a "lawful" basis for the applicant's detention in the
period to 4 December 2002, the Court finds that there has been a
violation of Article 5 з 1 of the Convention on account of the
applicant's detention on remand from 18 November to 4 December
2002.
3. Summary of the findings
167. The Court has found no violation of Article 5 з 1 of the
Convention on account of the applicant's detention on remand from
4 May to 8 August 2001 and from 9 January to 13 March 2002.
168. The Court has found a violation of Article 5 з 1 of the
Convention on account of the applicant's detention on remand from
8 August 2001 to 9 January 2002 and from 13 March 2002 to 4
December 2002.
III. Alleged violation of Article 5 з 3 of the Convention
169. The applicant complained under Article 5 з 3 of the
Convention that his detention on remand had been excessively long.
Article 5 з 3 reads as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be... entitled
to trial within a reasonable time or to release pending trial..."
1. The parties' submissions
170. The Government submitted that it had been necessary for
the applicant to remain in custody because he was a foreign
national charged with a particularly serious criminal offence. He
had no permanent residence in the Russian Federation and thus
would have been liable to abscond if released.
171. The applicant responded that the decisions extending his
detention were identically worded and more often than not did not
state any concrete reason as to why it was necessary to hold him
in custody.
2. The Court's assessment
(a) Principles established in the Court's case-law
172. Under the Court's case-law, the issue of whether a period
of detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention
must be assessed in each case according to its special features.
Continued detention can be justified 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.
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 examine all the facts arguing for or against
the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of
innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions dismissing the
applications for release. It is essentially on the basis of the
reasons given in these decisions and of the true facts mentioned
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
of the Convention (see Labita, cited above, з 152).
173. The arguments for and against release must not be "general
and abstract" (see Smirnova v. Russia, Nos. 46133/99 and 48183/99,
з 63, ECHR 2003-IX). Where the law provides for a presumption in
respect of factors relevant to the grounds for continued
detention, the existence of the concrete facts outweighing the
rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, No. 33977/96, з 84 in fine,
26 July 2001).
174. 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. In such cases, the Court must
establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty. Where
such grounds were "relevant" and "sufficient", the Court must also
ascertain whether the competent national authorities displayed
"special diligence" in the conduct of the proceedings (Labita,
cited above, з 153).
(b) Application of the principles to the present case
175. The applicant's detention on remand lasted from 22 January
1999, when he was taken in custody, to 28 May 2004, when he was
released. The total duration of the detention thus amounted to
five years, four months and six days. However, the Court does not
lose sight of the fact that in the periods from 8 August 2001 to 9
January 2002 and from 13 March 2002 to 4 December 2002 the
applicant's detention was not in accordance with Article 5 з 1 of
the Convention.
176. The Court accepts that the applicant's detention may
initially have been warranted by a reasonable suspicion that he
was involved in drug-trafficking. As noted in the District Court's
decision of 28 December 1999, at that stage of the proceedings the
need to ensure the proper conduct of the investigation and to
prevent the applicant from absconding - having regard to his
foreign nationality and permanent residence outside Russia - could
justify keeping him in custody.
177. However, with the passage of time those grounds inevitably
became less and less relevant. Accordingly, the domestic
authorities were under an obligation to analyse the applicant's
personal situation in greater detail and to give specific reasons
for holding him in custody.
The Government submitted that the courts had gauged the
applicant's potential to abscond by reference to his foreign
nationality and lack of permanent residence in Russia. However,
contrary to the Government's submission, after the case had been
sent for trial for the first time in June 2000, these particular
reasons were not cited in any valid extension order.
178. The Court further notes that at no point in the
proceedings did the domestic authorities consider whether the
length of the applicant's detention had exceeded a "reasonable
time". Such an analysis should have been particularly prominent in
the domestic decisions after the applicant had spent more than two
years in custody and all the detention periods permitted by the
domestic law had expired (see paragraphs 156 et seq. above).
179. After the trial started, the Regional Court extended the
applicant's detention seven times. The first three extensions were
subsequently quashed by the Supreme Court on the ground that they
had been given by the incomplete bench. All the decisions cited
the gravity of the charges as the main ground for the continued
detention. The two most recent decisions additionally mentioned
"sufficient reasons to believe that the defendants would abscond".
Moreover, five decisions - dated between 18 November 2002 and
28 August 2003 - referred to the need "to secure... the
enforcement of the conviction". The Court notes that this ground
for detention is only provided for in Article 5 з 1 (a) which
governs detention of a person "after conviction by a competent
court". However, in the present case the applicant had not been
convicted and the domestic courts' reliance on that ground
amounted to a prejudgment of the merits of the case, leaving a
conviction as the only possible outcome of the trial.
180. The Court accepts that the severity of the sentence faced
is a relevant element in the assessment of the risk of absconding.
In view of the seriousness of the accusation against the applicant
the authorities could reasonably consider that such an initial
risk was established. However, the Court has repeatedly held that
the gravity of the charges cannot by itself serve to justify long
periods of detention on remand (see Panchenko v. Russia, No.
45100/98, з 102, 8 February 2005; Goral v. Poland, No. 38654/97, з
68, 30 October 2003; Ilijkov v. Bulgaria, No. 33977/96, з 81, 26
July 2001).
This is particularly true in cases, such as the present one,
where the characterisation in law of the facts - and thus the
sentence faced by the applicant - was determined by the
prosecution without judicial review of the issue whether the
evidence that had been obtained supported a reasonable suspicion
that the applicant had committed the alleged offence. Indeed, the
Court observes that the applicant was only released from custody
after the prosecution had applied to his acts a different
characterisation in law. Further, less than a month after his
release the prosecution decided to drop most of the charges and
the trial court acquitted the applicant of those that remained.
181. As regards the existence of a risk of absconding, the
Court reiterates that such a danger cannot be gauged solely on the
basis of the severity of the sentence faced. It must be assessed
with reference to a number of other relevant factors which may
either confirm the existence of a danger of absconding or make it
appear so slight that it cannot justify detention pending trial
(see Panchenko, cited above, з 106; Letellier v. France, judgment
of 26 June 1991, Series A No. 207, з 43). In the present case the
decisions of the domestic authorities gave no reasons why,
notwithstanding the arguments put forward by the applicant in
support of his applications for release, they considered the risk
of his absconding to be decisive. The domestic decisions merely
hinted at the existence of "sufficient grounds to believe that the
defendants would abscond", without saying what those grounds
actually were. The Court finds that the existence of such a risk
was not established.
182. The Court finally observes that during the entire period
of the applicant's detention on remand, the authorities did not
consider the possibility of ensuring his presence at trial by the
use of other "preventive measures" - such as conditional bail or
an undertaking not to leave the town - which are expressly
provided for by Russian law to secure the proper conduct of
criminal proceedings (see paragraph 77 above).
183. In that context, the Court would emphasise that under
Article 5 з 3 the authorities are obliged to consider alternative
measures of ensuring his appearance at trial when deciding whether
a person should be released or detained. Indeed, the provision
proclaims not only the right to "trial within a reasonable time or
to release pending trial" but also lays down that "release may be
conditioned by guarantees to appear for trial" (see Sulaoja v.
Estonia, No. 55939/00, з 64 in fine, 15 February 2005; {Jablonski}
v. Poland, No. 33492/96, з 83, 21 December 2000).
184. Given that the applicant's trial would not be able to
begin for a considerable time owing to events wholly unrelated to
his conduct (see paragraph 188 below), the authorities should
either have considered having recourse to such alternative
measures or at minimum explained in their decisions why such
alternatives would not have ensured that the trial would follow
its proper course. This failure is made all the more inexplicable
by the fact that the new CCrP expressly requires the domestic
courts to consider less restrictive "preventive measures" as an
alternative to custody (see paragraph 80 in fine above).
185. In sum, the Court finds that the domestic courts'
decisions were not based on an analysis of all the pertinent
facts. They took no notice of the arguments in favour of the
applicant's release pending trial, such as his deteriorating
health and family connections in the region. It is of particular
concern to the Court that the Russian authorities persistently
used a stereotyped summary formula to justify extensions of
detention: the Regional Court reproduced the same one-paragraph
text verbatim in five decisions between 18 November 2002 and 28
August 2003 and a slightly modified version in two later
decisions.
186. Moreover, in the present case the Court observes an
established practice of issuing collective extension orders, that
is judicial decisions extending the period of detention of several
co-defendants at the same time, thereby ignoring the personal
circumstances of individual detainees. In the Court's view, this
practice is incompatible, in itself, with the guarantees enshrined
in Article 5 з 3 of the Convention in so far as it permitted the
continued detention of a group of persons (including the
applicant), without a case-by-case assessment of the grounds or
compliance with the "reasonable-time" requirement in respect of
each individual member of the group.
187. Having regard to the above, the Court considers that by
failing to address concrete facts or consider alternative
"preventive measures" and by relying essentially on the gravity of
the charges, the authorities prolonged the applicant's detention
on grounds which cannot be regarded as "relevant and sufficient".
188. That finding would, as a rule, absolve the Court from
having to determine whether the national authorities displayed
"special diligence" in the conduct of the proceedings. However, in
the present case the Court cannot but note that delays in the
proceedings were more than once occasioned by failings on the part
of the authorities. Thus, the trial court was unable to begin the
examination of the case in earnest from June 2000 to April 2001
because the prosecution persistently failed to arrange for a
translation of the bill of indictment into Tajik, the language
spoken by seven of the defendants. After that defect had been
rectified, the domestic courts were unable to agree whether other
procedural shortcomings had irreparably impaired the defence
rights and this led to a further delay from March to September
2002. Furthermore, on each occasion the file was returned to the
Regional Court, it took a considerable amount of time - ranging
from one and a half to four months - merely to fix the hearing
date. Having regard to these circumstances, the Court considers
that the domestic authorities failed to display "special
diligence" in the conduct of the proceedings.
189. There has therefore been a violation of Article 5 з 3 of
the Convention.
III. Alleged violations of Article 5 з 4 of the Convention
190. The applicant complained under Article 5 з 4 of the
Convention that he had not been permitted to take part in the
appeal hearings and that the courts had not pronounced "speedily"
on the lawfulness of his detention. Article 5 з 4 reads as
follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
1. The parties' submissions
191. As regards the proceedings on his appeal against the
Regional Court's decision 28 April 2001, the applicant contended
that it had taken the Supreme Court seventy-two days to fix the
first appeal hearing, which was by no means a "speedy" review.
After the hearing of 9 July 2001 had had to be adjourned, the next
hearing was not fixed until almost a month later, which could not
be considered sufficiently "speedy" either. The applicant claimed
that the Supreme Court's persistent refusals to permit his
attendance at the appeal hearing had been in breach of the
decisions of the Russian Constitutional Court on his complaints
(see paragraphs 56 and 57 above).
192. As regards the "speediness" of the review, the Government
submitted that there had been "objective reasons" for the length
of the proceedings, such as the failure of the applicant's counsel
to attend hearings, his repeated requests for adjournments and his
appeals to the higher court. As to the applicant's presence before
the appeal court, the refusal to permit the applicant's attendance
had been consistent with Article 335 of the CCrP, which restricted
the right to appear before the appeal court to persons who had
been convicted or acquitted.
2. The Court's assessment
(a) Principles established in the Court's case-law
193. The Court reiterates that Article 5 з 4, in guaranteeing
to persons arrested or detained a right to take proceedings to
challenge the lawfulness of their detention, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of detention and
ordering its termination if it proves unlawful. Although it does
not compel the Contracting States to set up a second level of
jurisdiction for the examination of the lawfulness of detention, a
State which institutes such a system must in principle accord to
the detainees the same guarantees on appeal as at first instance
(see Navarra v. France, judgment of 23 November 1993, Series A No.
273-B, з 28; Toth v. Austria, judgment of 12 December 1991, Series
A No. 224, з 84). The requirement that a decision be given
"speedily" is undeniably one such guarantee; while one year per
instance may be a rough rule of thumb in Article 6 з 1 cases,
Article 5 з 4, concerning issues of liberty, requires particular
expedition (see Hutchison Reid v. the United Kingdom, No.
50272/99, з 79, ECHR 2003-IV). In that context, the Court also
observes that there is a special need for a swift decision
determining the lawfulness of detention in cases where a trial is
pending because the defendant should benefit fully from the
principle of the presumption of innocence (see {Ilowiecki} v.
Poland, No. 27504/95, з 76, 4 October 2001).
(b) Appeal against the judicial decision of 28 April 2001
194. The Court notes that on 4 and 17 May 2001 the applicant
appealed against the Regional Court's decision of 28 April 2001
extending his detention on remand. After that decision had been
quashed on appeal and the matter had been reconsidered by the
Regional Court the Supreme Court gave a final decision on 23
January 2003. In these proceedings the Supreme Court twice refused
the applicant leave to appear before it; the applicant's lawyer
was, however, present.
195. The Court notes that the proceedings that followed the
applicant's appeal against the Regional Court's decision of 28
April 2001 lasted more than one year and eight months until the
final decision of the Supreme Court. Even though the Government
offered an explanation for some of the delays, they did not
explain, for example, why it had taken the Supreme Court more than
five months to examine the appeal against the Regional Court's
second decision, whereas, under domestic law, any appeal should
have been examined within two months maximum (see paragraph 96
above). The Government did not indicate the reasons for the
Supreme Court's failure to abide by that time-limit.
In any event, the Court considers that no exceptional
circumstances could justify such inordinate delays in proceedings
concerning the lawfulness of detention.
196. The Court finds therefore that there has been a violation
of Article 5 з 4 of the Convention on account of the length of the
proceedings on the applicant's appeal against the Regional Court's
decision of 28 April 2001. In the light of this finding, the Court
does need not to determine whether the refusal of leave to appear
also entailed a violation of Article 5 з 4.
(c) Application for release of 4 September 2001
197. The Court notes that, once the case was sent for trial on
4 September 2001, the applicant immediately lodged an application
for release, which the Regional Court examined and rejected on 9
January 2002.
198. The Court observes that under the domestic law in force at
the time the trial court was required to decide an application for
release within fourteen days after receipt of the case file
(Articles 223 and 223.1 of the old CCrP, see paragraphs 91 and 94
above). The Government did not explain why that provision had not
been complied with in the applicant's case.
The Court considers that a period of 125 days cannot be
considered compatible with the "speediness" requirement of Article
5 з 4, especially as the legal basis for the applicant's detention
had shifted.
199. Accordingly, the Court finds that there has been a
violation of Article 5 з 4 of the Convention on account of the
failure to examine the applicant's application for release of 4
September 2001 "speedily".
(d) Appeals against the judicial decision of 9 January 2002
200. The Court notes that on 9 January 2002 the trial court
extended the applicant's detention pending trial. On 5 February
2002 it adjourned the hearing because of the absence of three
defendants. On 11 and 15 February 2002 the applicant lodged
appeals against these decisions and the notice of appeal of 15
February repeated the points that had been raised in the notice of
appeal dated 11 February.
201. The applicant contended, and this was not contested by the
respondent Government, that the registry of the Regional Court had
omitted to send his notices of appeal to the Supreme Court.
202. The Court finds therefore a violation of Article 5 з 4 of
the Convention on account of the manifest failure of the domestic
authorities to examine the applicant's appeals against the
extension order of 9 January 2002.
(e) Appeal against the judicial decision of 13 March 2002
203. The Court notes that on 29 April 2002 the applicant
appealed against the trial court's decision of 13 March 2002 that
had resulted in his detention being extended. The appeal was not
examined by the Supreme Court until 12 September 2002. The Supreme
Court refused the applicant's request for leave to appear in
person.
204. For the same reasons as above, the Court considers that a
period of 134 days was incompatible with the "speediness"
requirement of Article 5 з 4 of the Convention and that there has
been a violation of that provision.
(f) Appeals against the decisions of 18 November and 4 December
2002
205. The Court notes that on 22 and 26 November and 5 December
2002 the applicant appealed against the decisions of 18 November
and 4 December 2002 extending his pre-trial detention. He
initially alleged that the Supreme Court had chosen not to examine
his appeals. On 21 March 2005, after the case had been declared
admissible, the Supreme Court quashed the decisions of 18 November
and 4 December 2002 on procedural grounds. However, the applicant
maintained that the Supreme Court's order quashing the decision of
4 December 2002 was made on his co-defendants' appeals only, not
his appeal of 5 December 2002.
206. The Court considers, firstly, that the examination of an
appeal more than two years after it was lodged obviously failed to
meet the "speediness" requirement of Article 5 з 4. It need not,
however, determine whether the applicant's appeal of 5 December
2002 was considered because the Supreme Court expressly refused to
take cognisance of any arguments concerning the substantive
aspects of the lawfulness of the applicant's detention or to remit
that matter for consideration by a lower court. Such a refusal
clearly infringed the applicant's right to take proceedings by
which the lawfulness of his detention would be decided.
207. The Court finds that there has been a violation of Article
5 з 4 of the Convention on account of the failure to consider the
substance of the applicant's appeals against the judicial
decisions of 18 November and 4 December 2002.
3. Summary of the findings
208. The Court has found a violation of Article 5 з 4 of the
Convention on account of:
- the length of proceedings on the applicant's appeal against
the decision of 28 April 2001;
- the failure to examine "speedily" his application for release
of 4 September 2001 and his appeal against the decision of 13
March 2002;
- the failure to examine his appeals against the extension
order of 9 January 2002;
- the failure to consider the merits of his appeals against the
decisions of 18 November and 4 December 2002.
IV. Alleged violation of Article 6 з 1 of the Convention
209. The Court, of its own motion, raised the question whether
the length of the criminal proceedings against the applicant was
compatible with the "reasonable-time" requirement of Article 6 з 1
of the Convention, which provides, in the relevant part, as
follows:
"In the determination of... any criminal charge against him,
everyone is entitled to a... hearing within a reasonable time by
[a]... tribunal..."
1. The parties' submissions
210. The Government submitted that the length of the
proceedings had been reasonable, having regard to the volume of
the case (22 binders), the large number of defendants (21) and
witnesses (over 100), the use of interpreters, consistent failures
by the defendants' counsel, including the applicant's lawyer, to
attend hearings and their repeated requests for adjournments on
various grounds.
211. The applicant contended that only 12 of the binders
concerned the merits of the charges, while the others only
included procedural documents. The investigators had "artificially
inflated" the volume of the case-file because they had charged all
the defendants with serious criminal offences without a sufficient
factual basis. In the applicant's view, the prosecution's decision
to drop a number of the charges during the final pleadings and his
acquittal by the court of the remainder confirmed that allegation.
Contrary to the Government's submissions, the actual number of
witnesses was 61, each of whom was called to the witness stand for
fifteen minutes only. As to the interpreters, it was precisely
because of the domestic authorities' failure to make
interpretation available in good time that it had become necessary
to return the case for an additional investigation with the
resultant delay in the proceedings. As to the lawyers' conduct,
the applicant indicated that on extremely rare occasions the case
had been adjourned due to his lawyer's absence and, in any event,
he had consented to the continuation of the proceedings without
his lawyer's presence.
212. The applicant submitted that the domestic authorities'
conduct had caused the most significant delays in the proceedings:
copies of procedural decisions had been handed over to the
defendants several weeks after the expiry of the time-limits. It
had taken the trial court 96 days to fix the first hearing and the
interval between hearings had sometimes been as long as 27 days.
The time it had taken for the case file to be transferred between
the Vladimir Regional Court and the Supreme Court was excessive,
ranging from 25 to 40 days. Finally, between 10 July 2003 and 15
March 2004 the trial could have fixed a tighter schedule of
hearings so as to avoid delays that had ranged from two to ten
days.
2. The Court's assessment
213. The period to be taken into consideration in the present
case began on 22 January 1999 when the applicant was taken into
custody. It ended on 21 March 2005 when the Supreme Court handed
down the appeal decisions. The proceedings thus lasted six years
and two months.
214. The Court acknowledges that the case was of a certain
complexity as it concerned a substantial number of drug-related
offences allegedly committed by more than twenty defendants. The
need to use interpreters to and from the Uzbek and Tajik languages
was a further complicating factor. However, in the Court's view,
the complexity of the case does not suffice, in itself, to account
for the length of the proceedings.
215. The Government's submissions about the persistent absence
of counsel were not sufficiently detailed - they omitted to
indicate the dates of absences or, at least, the number of times
counsel had been absent - or supported by evidence, such as
excerpts from the trial record. The Court considers therefore that
their allegation that the delays were mainly attributable to the
applicant's own conduct has not been made out.
216. On the other hand, the Court finds that the main cause of
the delays was the conduct of the domestic authorities: on three
occasions the trial court had to return the case to the pre-trial
stage to enable the investigators to remedy the breaches of the
defendants' rights, such as the absence of translation, which made
consideration of the merits impossible. In this context the Court
refers to its finding under Article 5 з 3 of the Convention that
the domestic authorities failed to act with the necessary
diligence in conducting the applicant's proceedings (see paragraph
188 above). That finding is likewise valid in respect of the
length of the criminal proceedings as such.
217. Having regard to the foregoing, the Court considers that
the length of the proceedings did not satisfy the "reasonable-
time" requirement. Accordingly, there has been a breach of Article
6 з 1 of the Convention.
V. Application of Article 41 of the Convention
218. 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. Pecuniary damage
219. The applicant claimed 14,700,000 US dollars (USD)
representing capital losses during the period he was detained. He
submitted that, as a result of the unlawful seizure of his
company's documents and seal by the Russian law-enforcement
authorities, he had lost control of his business and had been
exposed to substantial financial liabilities as his company had
defaulted on a bank loan. The applicant also claimed USD 6,938.10
for loss of earnings during five years of detention.
220. The Government contested the existence of a causal link
between the alleged violations and the loss of capital, as the
decision to prefer criminal charges against the applicant was not
the subject of the Court's review in the present case. They also
exposed calculation errors in the applicant's claims.
221. The Court shares the Government's view that there has been
no causal link between the violations found and the claimed
pecuniary damage (see {Stasaitis}, cited above, з 96; {Jecius},
cited above, з 106). Consequently, it finds no reason to award the
applicant any sum under this head.
B. Non-pecuniary damage
222. The applicant sought compensation in the sum of 50,000
euros (EUR) or such other sum as the Court considered just.
223. The Government considered that a finding of a violation
would constitute sufficient just satisfaction. They also submitted
that, owing to his acquittal, the applicant was entitled to
redress at the domestic level.
224. The Court notes that it has found a combination of
particularly grievous violations in the present case. The
applicant, who was never convicted of any criminal offence, spent
more than five years in custody, in inhuman and degrading
conditions and was frequently transported to and from the
courthouse in the conditions which were likewise inhuman and
degrading. His detention was unlawful for more than a year and,
when "lawful", was not based on sufficient grounds. Finally, on
various occasions he was denied the right to have the lawfulness
of his detention examined speedily. In these circumstances, the
Court considers that the applicant's suffering and frustration
cannot be compensated for by a mere finding of a violation. Making
its assessment on an equitable basis, the Court awards the entire
amount claimed by the applicant under this head, plus any tax that
may be chargeable on it.
C. Costs and expenses
225. The applicant claimed EUR 2,000 for his representation by
Mr Bagryanskiy, EUR 2,000 for his representation by Ms Gulakova
and a further 1,000 British pounds (GBP) for the preparation of
just-satisfaction claims by Mr Bowring.
226. The Government submitted that the applicant had been
represented in the proceedings before the Court by Mr Bagryanskiy,
Mr Ovchinnikov and Ms Moskalenko. The case file does not contain
any documents signed by either Ms Gulakova or Mr Bowring. In any
event, they considered the amounts claimed by the applicant
excessive.
227. The Court notes, firstly, that the applicant was granted
EUR 701 in legal aid for his representation by Mr Bagryanskiy. As
the applicant did not justify having incurred any expenses
exceeding that amount, the Court makes no award under this head.
As regards the preparation of the claim for just satisfaction, the
Court notes that on 2 June 2005 the President refused Ms
Gulakova's request for leave to act on behalf of the applicant. It
is true that Mr Bowring's name was printed at the bottom of the
claims, however, he did not sign the claims and there is no
indication that the applicant has paid any sums to Mr Bowring.
Accordingly, the Court makes no award in respect of legal costs
and expenses.
D. Default interest
228. 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 on account of the conditions of the applicant's
detention in facility No. OD-1/T-2 ("Vladimirskiy Tsentral");
2. Holds that there has been a violation of Article 3 of the
Convention on account of the conditions of the applicant's
transport from the remand facility to the courthouse and back;
3. Holds that there has been no violation of Article 5 з 1 of
the Convention on account of the applicant's detention on remand
from 4 May to 8 August 2001 and from 9 January to 13 March 2002;
4. Holds that there has been a violation of Article 5 з 1 of
the Convention on account of the applicant's detention on remand
from 8 August 2001 to 9 January 2002 and from 13 March 2002 to 4
December 2002;
5. Holds that there has been a violation of Article 5 з 3 of
the Convention;
6. Holds that there has been a violation of Article 5 з 4 of
the Convention on account of the length of proceedings on the
applicant's appeal against the decision of 28 April 2001, on his
application for release of 4 September 2001, and on his appeal
against the decision of 13 March 2002;
7. Holds that there has been a violation of Article 5 з 4 of
the Convention as regards the failure to examine the merits of the
applicant's appeals against the extension order of 9 January 2002
and against the decisions of 18 November and 4 December 2002;
8. Holds that there has been a violation of the "reasonable-
time" requirement of Article 6 з 1 of the Convention;
9. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final in
accordance with Article 44 з 2 of the Convention, EUR 50,000
(fifty thousand euros) in respect of non-pecuniary damage, 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;
10. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 8 November 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Nicolas BRATZA
President
Michael O'BOYLE
Registrar
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