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