Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonp,
Mr K.Traja,
Mr A. Kovler,
Mr L. Garlicki,
Mr J.Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar
Having regard to the above application lodged on
29 January 2002,
Having regard to the decision of
13 February 2004 to grant
priority to the above application under Rule 41 of the Rules of
Court,
Having
regard to the observations submitted by the respondent
Government and the observations in reply submitted by the
applicant,
Having
deliberated, decides as follows:
THE FACTS
The
applicant,
Mr Doniyor Toshpulotovich Khudoyorov, is a national of
Tajikistan who was born in 1965 and lives in Vladimir, Russia.
He is represented before the Court by Messrs F. Bagryanskiy and
M. Ovchinnikov, lawyers practising in Vladimir, and Mrs K.
Moskalenko, a lawyer with the International Protection Centre in
Moscow. The respondent Government
are represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
A. The circumstances of the
case
The facts
of the case, as submitted by the parties, may be summarised as
follows.
The
applicant arrived in Russia from Tajikistan on
17 August 1998. He stayed in Vladimir at his cousin’s
flat and underwent medical treatment.
1. The applicant’s arrest
and search of his flat
On 22 January 1999 the applicant came back to the flat at
1 a.m. and found the doors open. Five
minutes later a group of policemen entered the flat. The
applicant was allegedly severely beaten and chained by his hand
to a sofa leg.
The
policemen under the supervision of an investigator with the
Investigations Division of the Vladimir Regional Department of
the Interior, searched the flat and the applicant. The body
search was carried out in the presence of two female lay
witnesses (ïîíÿòûå)
who were employees of the same police department. The police
allegedly had no search warrant.
On 22 January 1999, at
3.50 a.m., the investigator ordered the applicant’s
detention on suspicion of the unlawful purchase and possession
of drugs. The applicant refused to countersign the detention
order. It appears that the detention order was issued only in
Russian.
On
the same day, between 3.50 and
4 a.m., the applicant was allegedly
interviewed as a suspect. The applicant disputes that the
interview took place. According to the transcript of the
interview, the applicant invoked immunity from
self-incrimination guaranteed by Article 51 of the Russian
Constitution, asked for a legal aid counsel and for an
interpreter and refused to countersign the record.
2. The applicant’s detention
pending investigation
On 22 January 1999 the Vladimir town prosecutor authorised the
applicant’s placement in custody on the ground that the
applicant was suspected of a criminal offence of medium gravity
and that he could abscond or interfere with establishment of the
truth. The applicant countersigned the order and also affixed
his signature next to the printed statement “I have been
informed of the right [to appeal] to a court”. The applicant
alleges that these signatures were forged and a copy of the
order was not given to him. No appeal against the order was
lodged.
On 30 January 1999 the applicant was charged, under Article
228 § 1 of the Criminal Code, with unlawful purchase and
possession of 3 g of hashish and he was questioned as an
accused. The charge sheet was countersigned by the applicant and
it contained a handwritten note “I was advised about my rights
and I understand them. I want Mr G[.] to be my legal aid
counsel” followed by the applicant’s and the lawyer’s
signatures. The applicant pleaded not guilty and indicated that
he did not need an interpreter because he had studied in
Leningrad. Both statements are followed by his signature. The
handwritten version of the events presented by the applicant is
also followed by the applicant’s and the lawyer’s signatures.
The applicant challenges the authenticity of these signatures.
On 12 March 1999 the acting Vladimir town prosecutor extended
the applicant’s detention until
11 April 1999. The applicant did not appeal against
the extension order.
On 5 April 1999 the Vladimir Region prosecutor extended the
applicant’s detention until
11 July 1999. On an unspecified date the applicant’s
lawyer asked a court to release the applicant on bail. On
4 June 1999 the Leninskiy District Court of
Vladimir dismissed the lawyer’s request. The court found that
the applicant’s detention had been extended in accordance with
the law and that no grounds for the applicant’s release could be
established. It appears that this decision was not appealed
against to the Regional Court.
On 30 June 1999 the Vladimir Region prosecutor extended the
applicant’s detention until
22 July 1999. On
2 September 1999 a deputy Prosecutor General
authorised a further extension until
21 December 1999. The applicant did not appeal
against these extension orders.
On 2 December 1999 the acting Prosecutor General approved the
extension of the applicant’s detention until
21 June 2000. The applicant appealed against the
order to a court. On
28 December 1999 the Leninskiy District Court of
Vladimir dismissed the applicant’s appeal, finding that the
applicant had been charged with an especially serious criminal
offence and that his residence in Vladimir had been temporary,
his permanent residence being in Dushanbe, Tajikistan, which
gave good reasons to suspect that he would flee if released. The
applicant did not appeal against the decision to the Regional
Court.
On 16 February 2000 the applicant was transferred to a
different detention centre where he was allegedly ill-treated by
other inmates with the wardens’ connivance. On 22 February 2000 the applicant went on a hunger strike
requesting a transfer to another cell. On 22 February, 9 March
and
13 March 2000 the applicant
was visited by his lawyers, a representative of the Tajikistan
Embassy and a prosecutor of the Vladimir Region, respectively –
all of them are alleged to have seen the applicant’s injuries.
On
21 April 2000 the applicant was fed by force.
3. First return of the case
for additional investigation
On 21 June 2000 the supervising prosecutor approved the bill
of indictment and the case against the applicant and twenty
co-defendants was referred to the Vladimir Regional Court for
trial.
On
23 June and
17 July 2000 the applicant requested the Vladimir
Regional Court to review the lawfulness of his detention on
remand.
On 18 July 2000 the Vladimir Regional Court ordered the case
to be returned for additional investigation because the bill of
indictment had not been translated into the Tajik language,
whilst seven defendants were Tajik. The court held that the
applicant and his co-defendants should remain in custody.
On 24 July 2000 the prosecution appealed against the decision.
A copy of their grounds of appeal was given to the applicant on
11 August 2000. On
14 August 2000 the applicant
submitted his observations; he requested that the appeal be
dismissed and the lawfulness of his detention be reviewed.
On
27 July and
18 August 2000 the applicant complained to the
Vladimir Regional Court that his previous requests for review of
the lawfulness of his detention had received no response.
On 30 August 2000 the prosecution withdrew their appeal of
24 July 2000 and on the same
day the case was re-submitted to the Vladimir Regional Court for
examination on the merits.
4. Second return of the case
for additional investigation
(a) Preparation for the
trial
On 4 September 2000 the applicant sent complaints to the
President of the Vladimir Regional Court and the President of
the Frunzenskiy District Court of Vladimir concerning the
lawfulness of his detention. He submitted, in particular, that
the authorised period of his detention had expired.
On 10 October 2000 the Vladimir Regional Court fixed a hearing
for
1 November 2000 and ordered that the applicant and
his co-defendants remain in custody.
On 1 November 2000 the hearing was adjourned until 14 November
because the interpreter from Tajik was absent.
On
14 and
23 November 2000 the applicant and his
co-defendants filed several requests. In particular, the
applicant requested that all materials be translated into Tajik
and the interpreter be replaced with a competent one.
(b) Decision to return the
case for additional investigation
On
23 November 2000 the court ordered the case to be
remitted for additional investigation because the defence rights
of several defendants had been unlawfully restricted. The court
pointed out, however, that the request to translate the entire
case-file into Tajik had no grounds in national law as the law
only provided for translation of the bill of indictment and
judicial documents, which had been done.
On 30 November 2000 the prosecution lodged an appeal against
the decision of 23 November. On 30 December 2000 and
1 January 2001 the applicant sent his points of
appeal and his objections to the prosecution’s appeal; both
documents were written in Tajik and they were allegedly never
translated into Russian.
(c) Quashing of the decision
to return the case for additional investigation
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 by the Vladimir Regional Court on
18 July 2000 for additional investigation, the
prosecution had not taken any measures to remedy the defects
identified by the Regional Court. In particular, the prosecution
had not arranged for translation of the bill of indictment
comprising nearly 400 pages and had not verified the competence
of the interpreter. In view of these procedural defects, the
Supreme Court held that all subsequent judicial decisions had
been unlawful and remitted the case to the Vladimir Regional
Court for enforcement of the decision of
18 July 2000.
(d) Additional investigation
of the case
i. Extension of the
applicant’s detention for one month (until
4 May 2001)
On 4 April 2001 the case was returned to the prosecutor’s
office 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 until
4 May 2001, under Article 97 § 7 of the Code of
Criminal Procedure.
ii. Extension of the
applicant’s detention for three months (until 4 September 2001)
On 19 April 2001 the prosecutor of the Vladimir Region applied
to the Vladimir Regional Court for an extension of the
applicant’s detention. The applicant filed his objections where
he alleged,
inter alia,
that so far the prosecution had failed to perform any additional
investigation.
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 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 extended his detention period until
4 September 2001.
On 4
and
17 May 2001 the applicant appealed against the
decision of the Vladimir Regional Court.
On 2 July 2001 the applicant petitioned the investigator for
release. On
5 July 2001
his request was dismissed with reference to the gravity of the
charge against him and the absence of a permanent residence in
Vladimir. The applicant did not appeal against the refusal to a
court.
iii. Quashing of the
decision to extend the applicant’s detention until 4 September 2001
On 8
August 2001 the Supreme Court of the Russian Federation
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 in the Regional Court. It held:
“The
defects of the court hearing described above and the curtailing
of the defendants’ lawful rights... are substantive violations
of the criminal procedure rules which could have affected the
judge’s conclusions; the decision [of 28 April 2001] must
therefore be quashed and the materials of the case for extension
of the defendants’ detention on remand 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’s request to be present at the appeal hearing.
iv. Second examination of
the request for extension of the applicant’s detention until 4
September 2001
On 11
September 2001 the Vladimir Regional Court adjourned the hearing
because several counsel did not appear and because several
co-defendants asked for additional time for reading the
case-file.
On 30
November 2001 the Vladimir Regional Court granted the
applicant’s lawyer’s request for additional time to study the
case-file and adjourned the hearing.
On 27
February 2002 the Vladimir Regional Court granted the
applicant’s challenge to the presiding judge.
On 11 and
13 March 2002 hearings were adjourned because of the absence of
several lawyers, including the applicant’s counsel.
On 12
April, 17 and 18 June 2002 further adjournments were due to the
absence of counsel of other co-defendants.
On 15
August 2002 the Vladimir Regional Court issued a new decision on
the application of the prosecutor of the Vladimir Region of
19 April 2001 for extension of the defendants’ detention on
remand and granted the extension requested to 4 September 2001.
The court found that the applicant’s holding in custody was
necessary because he was a national of Tajikistan, he had no
residence registration in Vladimir, and he was 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
contents of these “conclusions” were not disclosed.
On 23
September 2002 the applicant lodged an appeal against the
decision of the Vladimir Regional Court. He claimed that the
contested decision had been “unlawful and unconstitutional” and
requested leave to appear in person at the appeal hearing.
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 especially
serious criminal offences, he considered the information on
their personalities 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
period of time in custody... is not a ground for quashing of 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 returned for a new
examination. The subsequent progress of the criminal case is,
under these circumstances, of no relevance in reaching 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 points of appeal, their
lawyers were present and the prosecutor did not participate.
5. Third return of the case
for additional investigation
(a) Preparation for the
trial
Meanwhile,
on 4 September 2001 the additional investigation of the case was
completed and it was sent to the Vladimir Regional Court. On or
about that date the applicant asked the court for release
pending trial.
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 to revoke
the preventive measure imposed on the accused given the gravity
of the charge against the defendants. Furthermore, the quashing
on appeal of the court decision extending the detention on
remand of several defendants in order to afford them [time] to
examine the case materials is of no legal significance. [In its
decision of 8 August 2001] the Supreme Court did not revoke the
preventive measure, the case was forwarded to the court without
delay and no other grounds for amending the preventive measure
were established.”
On 11
February 2002 the applicant filed an appeal against the
decision. He complained, in particular, about the unlawfulness
of his detention because it had significantly exceeded the
maximum 18-month period permitted by law, about poor conditions
of his detention and ill-treatment by police officers during his
apprehension and in subsequent periods. The applicant alleges
that his appeal has never been despatched to the Supreme Court.
On 5
February 2002 the hearing was adjourned until 26 February
because three defendants failed to appear. On 15 February 2002
the applicant prepared an appeal against the decision to adjourn
the hearing, which, in addition, restated the points raised in
his appeal of 11 February. The applicant contends that his
appeal was not sent to the Supreme Court.
Between 4
and 13 March 2002 further hearings were held.
(b) Decision to return the
case for additional investigation
On 13 March 2002 the Vladimir
Regional Court established that the case was not ready for
consideration on the merits because of many procedural defects:
in particular, several defendants had not had sufficient time to
study the case file, one defendant had not been provided with an
interpreter into Uzbek, and the applicant had not been informed
in time of the expert examinations. The court remitted the case
for additional investigation and remanded the defendants in
custody “in the light of the gravity and dangerousness of the
charges”.
On 11 and
29 April 2002 the prosecution and the applicant, respectively,
appealed against the decision of 13 March. 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 expired, in his case, on
4 April 2001.
On 28 May
2002 the case-file was forwarded to the Supreme Court of the
Russian Federation for examination of the remand matter.
(c) Quashing of the decision
to return the case for additional investigation
On 8
August 2002 the Supreme Court of the Russian Federation refused,
by an interim decision, the applicant’s request for leave to
appear because his position had been clearly and exhaustively
stated in his points of appeal.
On 12
September 2002 the Supreme Court examined the appeals lodged by
the prosecutor, by the applicant and by his co-defendants and
found that their defence rights had not suffered any impairment.
On this ground it quashed the decision of 13 March 2002 and
instructed the Vladimir Regional Court to proceed with 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 dangerousness of the
charges”.
On 7
October 2002 the case-file was returned to the Vladimir Regional
Court.
6. Further extensions of the
applicant’s detention pending trial and his release from custody
On 18
November 2002 the Vladimir Regional Court held that the
applicant’s detention on remand was to be extended until 3
December 2002. The court found as follows:
“The case
was referred to the Vladimir Regional Court on 2 September 2001;
on 13 March 2002 the decision to remit the case for additional
investigation was made. On 12 September 2002 the Supreme Court
quashed that decision, upon the prosecutor’s appeal. Thus, the
defendants have remained in custody for 8 months and 16 days,
starting from the date of the case referral and excluding the
time period between [the end of] examination on the merits and
the quashing of the decision [of 13 March 2002] on appeal.
Taking
into account that the defendant is charged with serious and
especially serious criminal offences, in order to secure the
examination of the case and enforcement of the conviction, there
are no grounds to [release the applicant]. Under these
circumstances, pursuant to Article 255 § 3 of the Russian Code
of Criminal Procedure, the defendant’s detention on remand is to
be extended for an additional three months”.
On 4
December 2002 the Vladimir Regional Court granted a further
extension of the applicant’s detention for three months, i.e.
until 3 March 2003 [the decision mistakenly indicates 2002]. The
grounds invoked by the court were identical to those in the
decision of 18 November 2002.
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 of the Russian Federation. They submitted, in
particular, that the six-month period of the applicant’s
detention which had started from the moment the case had been
forwarded to the court had expired on 2 March 2002 and, in
breach of Article 255 § 2 of the Code of Criminal Procedure, it
had not been extended at that time, but only two months and 16
days later, on 18 November. Therefore the applicant’s detention
between 13 March and 12 September 2002 was not covered by any
detention order because the prosecution had not accepted the
case, while the courts considered the case to have been remitted
for additional investigation and held the prosecution
accountable for the applicant’s detention.
In his
observations on the admissibility and merits of the application,
the applicant submitted that these statements of appeal had not
reached the Supreme Court. The Government did not address this
issue in their memorandum of 7 June 2004.
It appears
from the information supplied by the applicant that on 3 March,
28 May, 28 August and 27 November 2003 and 27 February 2004 the
Vladimir Regional Court authorised further extensions of the
applicant’s pre-trial detention, each time for three months. The
applicant asserts that he submitted his grounds of appeal
against each extension, however, the Regional Court’s registry,
for no apparent reason, failed to forward these documents to the
Supreme Court of the Russian Federation.
Between
May 2003 and 15 March 2004 further trial hearings were held. On
19 April 2004 the parties started their final pleadings.
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 meanwhile re-characterised the
offences imputed to the applicant as those of lesser gravity. It
appears that on the same day the applicant was released from
custody.
7. Judgments of the
Constitutional Court
On 10
December 2002 the Constitutional Court examined the applicant’s
complaint concerning his absence 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 participated.
On 15 July
2003 the Constitutional Court issued decision no. 292-O
concerning the applicant’s complaint about the retrospective
extension of his “detention during trial” by the Regional
Court’s decision of 18 November 2002. It held as follows:
“Article
255 § 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 referral, extend the
defendant’s detention each time for up to three months. It does
provide, however, for the possibility to take a judicial
decision extending the defendant’s detention on remand after the
expiry of the previously authorised time-limit, in which case
the person would be detained for a certain period of time
without a judicial decision. Nor do other norms of the laws on
criminal procedure provide for such a possibility. Moreover,
Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure
explicitly require the court, prosecutor, investigator... to
immediately release anyone who is unlawfully held in custody
beyond the time-limit established in the Code. Such is also the
requirement of Article 5 §§ 3 and 4 of the European
Convention... which is an integral part of the legal system of
the Russian Federation, pursuant to Article 15 § 4 of the
Russian Constitution...”
On 22
January 2004 the Constitutional Court delivered decision no.
66-O regarding the applicant’s complaint about the Supreme
Court’s refusal to obtain his attendance at the appeal hearings
in remand matters. 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 participation in 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...”
8. Discontinuation of the
criminal proceedings
On 18 June
2004 the Vladimir Regional Court, by an interim decision,
discontinued the criminal proceedings against the applicant in
the part concerning the charges of participation in an organised
criminal enterprise and running an opium den because the
prosecution had abandoned these charges.
By another
interim decision of the same date, the court terminated the
criminal prosecution of the applicant in respect of one incident
of drug possession because of a recent change in the Russian
criminal law that had removed criminal liability for possession
of negligible amounts of drugs.
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.
It appears
that the applicant lodged an appeal against the interim
decisions which is now under consideration by the Supreme Court.
9. Conditions of the
applicant’s detention and transport
(a) The applicant’s
detention in facility no. IZ 28/1 (33/1)
Between 2
February 1999 and 16 February 2000 the applicant was held in
detention facility no. 28/1 (later renamed 33/1) of the Vladimir
Region.
The
applicant was held in cell no. 40. The cell measured 40 square
metres and had 24 beds. The cell population varied between 35
and 60 inmates.
(b) The applicant’s
detention in facility no. OD-1/T-2
Between 16
February 2000 and 28 May 2004 the applicant was held in
detention facility no. OD-1/T-2
of
the
Vladimir
Region
(ó÷ðåæäåíèå ÎÄ‑1/Ò-2 ÓÈÍ
ÌÞ ÐÔ ïî Âëàäèìèðñêîé îáëàñòè).
He stayed in various cells in
wings nos. 3 and 4, built in 1870 and 1846, respectively.
i. Number of inmates per
cell
According
to a certificate of 22 April 2004 from the facility director,
produced by the Government, the applicant was kept in eight
cells described as follows: cell no. 4-14 (12.1 m2,
6 bunks, average population 4 to 6 inmates), cell no. 4-13 (12.3
m2,
6 bunks, 5 to 7 inmates), cell no. 4-9 (23.4 m2,
13 bunks, 13 to 20 inmates), cells nos. 3-3, 3-53, 3-54, 3-51
and 3-52 (35 to 36 m2,
16 bunks, 12 to 18 inmates).
The
applicant does not dispute the cell measurements and the number
of bunks. He disagrees, however, with the number of inmates
asserted by the Government. According to him, between February
and December 2000 he stayed in cell no. 4-9 that accommodated 18
to 35 inmates and between December 2000 and May 2004 he was kept
in cells measuring approximately 36 m2,
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 15-25 persons. Given an
insufficient number of beds, inmates slept in eight-hour shifts.
They waited for their turn sitting on the concrete floor or on a
stool if available.
In support
of his statements the applicant produced written depositions by
his former cellmates, Messrs Abdurakhmon Kayumov, Sergey Gunin
and Yan Kelerman. They stated, in particular, that in 2003-2004
cell no. 3-52 had accommodated 20 to 30 persons (Mr Kayumov’s
deposition) or even 25 to 35 inmates (Mr Gunin’s deposition), as
had cells nos. 3-51 and 3-53. They also submitted that they and
the other detainees had slept in turn.
ii. Sanitary conditions and
installations
The
Government, relying on a certificate of 8 April 2004 from the
facility director, submit that “sanitary and antiepidemic state
of the facility remains satisfactory, including... in the cells
where [the applicant] was held”. Another certificate of 20 April
2004 shows that “the cells... were equipped with [a pan] placed
no higher 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 water heaters.
The
applicant concedes that there were no outbreaks of contagious
diseases or epidemics. Apart from that, the sanitary conditions
were wholly unsatisfactory. Persons infected with tuberculosis,
hepatitis, scabies and HIV were occasionally kept in his cell.
Cells swarmed with clothes lice, bed-bugs, flies, mosquitoes,
cockroaches, rats and mice; the facility administration did not
provide products to fight them. Detainees were not given any
toilet articles, such as soap, toothbrush or toothpaste, toilet
paper, etc., save for 100 g of caustic soda once a week and two
plastic bottles of bleach (1.5 litres each) every two or three
months. Cells had no forced ventilation. In winter they were
cold and in summer it was hot, stuffy and excessively damp
inside.
The
applicant challenges the Government’s description of the toilet
facilities as factually untrue. The cast-iron pan was raised on
a pedestal of about 50-80 cm 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 sanctioned the persons responsible. What is more,
the pan had no seat or cover: inmates stuck an empty plastic
bottle in the hole in order to prevent rancid smells from
spreading. The dining table was fixed to the floor hardly a few
metres away from the pan. This description is corroborated by
written depositions of the applicant’s former cellmates, Messrs
Abdurakhmon Kayumov, Sergey Gunin, Yan Kelerman and Sergey
Kalenik, and four colour photos showing the pan and the dining
table from various angles.
iii. Food
The
Government assert that “the applicant was fed in accordance with
the established legal norms”. It appears from an undated
certificate signed by the facility director that he was to
receive, in particular, 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,
etc. per day.
The
applicant submits that the food was of extremely low quality.
Most meals only included a so-called
balanda, a soup-like
mix of millet, barley and pasta without any fat. Meat was
replaced with a soy substitute. No fresh vegetables were
provided, occasionally the evening meal included cooked
beetroot, sauerkraut or pickled cucumbers. Salt and tea were
never distributed. Four written depositions by the applicant’s
former cellmates confirm these submissions.
iv. Outdoor exercise
The
parties agree that the applicant was entitled to a daily walk of
about one hour. The applicant indicates, however, that he was
denied an opportunity to go outdoors on days of court hearings.
The
Government do not describe the outdoor conditions. The
applicant, and four written depositions by his former cellmates,
portray the following picture of the exercise yards. They were
closed premises measuring 12, 26 or 40 m2.
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. Walls were covered with so-called
shuba, a sort of
thorny 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 the crowd was so dense.
v. Other issues
According
to the applicant, the metal blinds blocking the access to
natural light into cells were only removed on 28 December 2002
after a delegation that included a representative of the Council
of Europe paid a visit to Vladimir detention facilities on 19
December 2002. The Government do not contest this information.
(c) Contact with the outside
world
The
applicant’s relatives were not permitted to see him throughout
the pre-trial investigation. After the trial had begun, he was
afforded four short-term 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 maintaining written
correspondence with his relatives otherwise than in the Russian
language: the facility administration refused to despatch his
letters written in Tajik or to give him his relatives’ letters
in Tajik.
The
Government explain that these restrictions were due to the
absence of a staff interpreter from Tajik in the facility.
(d) Conditions of the
applicant’s transport to and from the courthouse
During the detention on
remand the applicant was transported to the Vladimir Regional
Court on 205 occasions, of which 185 hearings concerned the
charges against him and 20 hearings concerned extensions of his
detention. The applicant offers the following description of the
days on which he was taken to a hearing before the Vladimir
Regional Court. His account is corroborated by four written
depositions from his former cellmates.
On the
hearing day the applicant 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 m2
and accommodated 10 to 20 persons. “Assembly cells” had no
artificial ventilation and the air was soon heavy with smoke. At
about 9 or 9.30 a.m. the applicant was taken to a van.
The
passenger compartment of the prison van had one “common” cell
designed for four persons and six “individual” cells of 1
m2.
The total design capacity was 10 persons. However, it usually
transported 15-20 and up to 27 detainees. Occasionally the
applicant was put in an “individual” cell together with another
person. Owing to insufficient space, one of them could sit on
the bench and the other person sat on his lap. The route to the
Vladimir Regional Court took one hour, the van called into other
facilities on its way.
Upon
arrival at the courthouse the applicant was placed in one of the
three temporary holding cells (êîíâîéíîå ïîìåùåíèå). Cells measured 2.6 m2
(2 m x 1.3 m) with ceilings 2.5 m high. They had been designed
for 2 or 3 inmates, but accommodated 5 to 7 persons. Dim light
only penetrated from the corridor through a small opening (15 by
20 cm) shielded with a perforated metal plate. There was no
forced ventilation and no access to fresh air. Walls were
covered with
shuba, a
kind of thorny concrete lining. The defendants were kept in
these cells before, after and between court sessions.
The
applicant normally did not arrive back to his cell until 6 or 8
p.m. On these days the applicant received no food, no outdoor
exercise and occasionally missed the shower day.
At trial
hearings on 27 March, 28 May, 9 July and 27 November 2003 the
applicant complained to the trial judge about inhuman conditions
of confinement at the courthouse and lack of food and fresh air.
Each time the judge referred him to “the competent authorities
supervising the detention of defendants”.
B. Relevant domestic law
For
a summary of relevant provisions of the Russian criminal
procedure law, see
Panchenko v. Russia, no. 45100/98, 8 February 2005, §§
74-89.
C. Relevant international
instruments
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...”
The
relevant extracts from the General Reports prepared by the
European Committee for the Torture and Inhuman or Degrading
Treatment or Punishment (CPT) state 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...”
COMPLAINTS
1. The applicant complains
under Article 3 of the Convention that the conditions of his
detention on remand and the conditions of his transport to and
from the courthouse amounted to inhuman treatment.
2. The
applicant complains under
Article 5 § 1 (c) of the Convention that his arrest and
detention on remand were not lawful because the prosecution did
not have a reasonable suspicion of his having committed a
criminal offence.
3. The
applicant complains under Article 5 § 2 of the Convention that
he was not informed of the reasons for his arrest in the Tajik
language. An interpreter mastering the Tajik language was only
provided to him in 2000.
4. The
applicant complains under Article 5 § 3 of the Convention about
a violation of his right to trial within a reasonable time or to
release pending trial. He complains that the decisions of the
domestic courts authorising his detention were poorly reasoned
and the courts used stereotyped wordings without citing any
relevant facts in support of their conclusions that he might
abscond or obstruct justice.
5. The
applicant complains under Article 5 § 4 of the Convention that
during the first year of his detention he could not initiate a
review of the lawfulness of his detention because he had no
access to an interpreter. He complains that he was not present
at the appeal hearings, despite his requests to that effect, and
that the courts did not take into account the arguments set out
in his appeals. Also, he contends that the courts failed to
pronounce “speedily” on the lawfulness of his detention.
6. The
applicant also invokes Articles 6, 8, 9, 13 and 14 of the
Convention and Article 1 of Protocol No. 1, without providing
any details about alleged violations of these provisions.
THE LAW
1. The
applicant complains that the conditions of his detention 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 IZ 28/1 (33/1)
The Court
notes that the applicant remained in facility IZ 28/1 (33/1)
until 16 February 2000. It does not appear that the applicant
lodged any complaints concerning the conditions of his detention
in that facility after he had been transferred from it. However,
his application to the Court was only lodged on 29 January 2002,
that is more than six months after his detention in that
facility had ended.
It follows
that this part of the complaint is introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
B. Conditions of detention
in facility no. OD-1/T-2
The
Government submit that the applicant’s transfer to facility no.
OD-1/T-2 represented a marked improvement in his conditions of
detention, in particular, as regards the number of inmates per
cell. In that facility the applicant had at all times no less
than 2 m2
for himself. Upon the transfer the applicant was 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 at least one
hour of outdoor activity daily and the food was in compliance
with the applicable standards. The applicant was permitted to
talk to his relatives, and to correspond with them, only 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 Government finally
submit that the applicant did not complain to the Ministry of
Justice about harassment or threats emanating from either other
detainees or the facility wardens.
The
applicant challenges the Government’s submissions as factually
inaccurate. He indicates that the number of inmates per cell was
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
submits 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 considers
that the requirement to talk Russian to his small children who
spoke only Tajik was degrading and humiliating. He finally
indicates that, upon his release, he was diagnosed with several
diseases, such as hypertension and prostatitis, acquired during
the detention.
The Court
considers, in the light of the parties’ submissions, that this
part of the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. The Court concludes therefore that
this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other ground for
declaring it inadmissible has been established.
C. Conditions of transport
between the facility and the courthouse
The
Government make no comments on legal aspects of the complaint.
The
applicant maintains that the conditions of transport between the
detention facility and the Vladimir Regional Court and the
conditions of confinement at the courthouse were inhuman and
degrading. “Assembly cells”, the van and temporary holding cells
were severely overcrowded, with no access to natural light or
air. He was not given food or drink and the cumulative effect of
these conditions was that of mental and physical exhaustion. He
considers that such conditions were incompatible with paragraph
45 (2) of the Standard Minimum Rules for the Treatment of
Prisoners (cited above).
The Court
considers, in the light of the parties’ submissions, that this
part of the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. The Court concludes therefore that
this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other ground for
declaring it inadmissible has been established.
2. The
applicant complains under Article 5 §§ 1 (c) and 3 of the
Convention that his detention on remand was not lawful and
excessively long. 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;
...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial...”
The
Government submit that the applicant was to remain in custody
because he was a foreign national charged with an especially
serious criminal offence. He had no permanent residence in the
Russian Federation and therefore he could abscond, if released.
They aver that the entire term of his detention was compatible
with the domestic procedural rules and free from arbitrariness.
More specifically, on 22 January 1999 the applicant was arrested
and questioned as a suspect. On 28 April 2001 the Vladimir
Regional Court authorised the applicant’s detention until 4
September 2001 so as to afford him additional time to read the
case-file. 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 law
on criminal procedure did not require that the applicant’s
detention should 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 Code on Criminal Procedure 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. In the Government’s opinion, there was no
violation of the applicant’s rights under Article 5 §§ 1 and 3
of the Convention.
The
applicant disagrees. He contends that on 8 August 2001 the
Supreme Court quashed the extension order of 28 April 2001 as
unlawful and remitted the remand matter for a new examination
and, accordingly, his detention from 28 August 2001 was not
“lawful” in the meaning of Article 5 § 1 of the Convention.
After the case was referred for trial on 4 September 2001, the
applicant submitted a request for release. However, it took the
Regional Court more than four months – instead of the fourteen
days required by Article 223-1 § 2 of the Code of Criminal
Procedure – to hold the directions hearing and to examine the
request. The decision of 9 January 2002 was deficient in its
reasoning: the applicant was remanded in custody solely with
regard to the gravity of the charges against him. However, the
Russian Constitutional Court held on a number of occasions that
that ground was not, in itself, sufficient to justify the
continued detention. Moreover, his appeal against that decision
to the Supreme Court was not examined. The applicant further
submits that neither the Regional Court’s decision of 13 March
2002 nor the Supreme Court’s decision of 12 September 2002
addressed the arguments for or against his release and that his
right to take part in the examination of the appeal was not
respected. He indicates that on 12 September 2002 the Supreme
Court heard the appeal for thirty minutes only. The applicant
complains that on 18 November 2002 the Regional Court extended
his detention retrospectively to cover the preceding two months
and 15 days and that a similar retrospective extension was made
on 4 December 2002. Finally, the applicant notes that the
decisions extending his detention were in all cases identically
worded and more often than not they did not refer to any
specific reasons as to why it was necessary to hold him in
custody.
(a) Insofar as the applicant complained about the unlawfulness
of his detention in the period to 4 May 2001, the Court observes
that he either did not challenge before a domestic court the
detention orders issued in that period, including that of 4
April 2001 extending his detention to 4 May 2001, or did not
bring appeals against the first-instance court’s decisions, to
the regional court. Even where he lodged points of appeal and
they were not examined, as it happened most recently in January
2001, the Court notes that these events had taken place more
than six months before the applicant lodged his application to
this Court.
It follows
that the part of the complaint concerning the lawfulness of the
applicant’s detention prior to 4 May 2001 must be rejected for
non-exhaustion of domestic remedies or non-compliance with the
six-month time-limit, under Article 35 §§ 1 and 4 of the
Convention.
(b) As to
the remainder of the complaint, the Court considers, in the
light of the parties’ submissions, that it raises serious issues
of fact and law under the Convention, the determination of which
requires an examination of the merits. The Court concludes
therefore that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established.
3. The
applicant complained under Article 5 § 2 of the Convention that
the reasons for his arrest were not explained to him in his
native Tajik language. Article 5 § 2 provides as follows:
“Everyone
who is arrested shall be informed promptly, in a language which
he understands, of the reasons for his arrest and of any charge
against him.”
The Court
observes that the applicant’s complaint concerning his arrest
was dismissed by the Leninskiy District Court of Vladimir on 28
December 1999. It further notes that at least since February
2000 the applicant could benefit from the services of an
interpreter of the Tajik language. However, he only lodged his
application on 29 January 2002, that is more than six months
thereafter.
It follows
that this complaint is introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
4. The
applicant complains under Article 5 § 4 of the Convention that
he was not permitted to take part in the appeal hearings and
that the courts did not pronounce “speedily” on the lawfulness
of his detention. Article 5 § 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.”
(a)
As regards several sets of proceedings for review of the
lawfulness of the applicant’s detention that took place before
the Supreme Court’s decision of 28 February 2001, the Court
notes that the application was lodged more than six months after
these events had occurred and/or the final decisions in those
proceedings had been made.
It follows
that this part of the application is introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
(b) As
regards the proceedings for review of the lawfulness of the
applicant’s detention extended by the Regional Court’s decision
of 28 April 2001, the Government submit that the Supreme Court
received the case-file, including statements of appeal, on 15
June 2001. On 9 July 2001 the appeal hearing was adjourned at
the request of the lawyer of one of the defendants. On 8 August
2001 the Supreme Court quashed the decision of 28 April 2001 and
remitted the matter. Several hearings were fixed and adjourned
owing to counsel’s absence. On 15 August 2002 the Vladimir
Regional Court issued a new decision in the remand matter. The
Government maintain that the length of the proceedings was due
to “objective reasons”, such as the applicant’s counsel’s
failure to attend hearings, his repeated requests for
adjournments and lodging of appeals to the higher court. As
regards the applicant’s presence before the appeal court, the
Government submit that the refusal to obtain his attendance was
compatible with the then Article 335 of the RSFSR Code of
Criminal Procedure which limited the list of persons having the
right to appear before the appeal court, to those who had been
convicted or acquitted.
The
applicant contends, as regards the proceedings on his appeal
against the Regional Court’s decision 28 April 2001, that it
took the Supreme Court seventy-two days to fix the first appeal
hearing which is by no means a “speedy” review. After the
hearing of 9 July 2001 had to be adjourned, the next one was
fixed almost a month later, which cannot be considered
sufficiently “speedy”, either. In any event, he considers that
the retrospective examination of the prosecutor’s application
for an extension of his detention on remand was not lawful and
incompatible with the Russian Constitution and the Convention.
The applicant further notes that the Government omitted to
explain why his appeals against the Regional Court’s decisions
of 18 November and 4 December 2002 were not sent to the Supreme
Court. Finally, he claims that the Supreme Court’s persistent
refusals to secure his attendance at the appeal hearing was in
breach of the binding rulings of the Russian Constitutional
Court delivered upon his complaints (see part 7 of the Facts
above).
The Court
considers, in the light of the parties’ submissions, that the
part of the complaint concerning the proceedings for review of
the applicant’s detention after 28 April 2001 raises serious
issues of fact and law under the Convention, the determination
of which requires an examination of the merits. The Court
concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has
been established.
5. The
Court, of its own motion, raised the question whether the length
of criminal proceedings against the applicant was compatible
with the reasonable time requirement of Article 6 § 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...”
The
Government claim that they are not in a position to provide a
“conclusive answer” as to the compliance with the “reasonable
time” requirement because the proceedings are still pending.
They submit, however, that the length of the proceedings was
reasonable, having regard to the volume of the case (22
binders), the large number of defendants (21 persons) and
witnesses (over a hundred persons), the use of interpreters,
consistent failures of the defendants’ counsel, including the
applicant’s lawyer, to attend the hearings and their requests
for adjournments on various grounds.
The
applicant disagrees with the Government’s allegations. He
contends that only 12 binders concerned the merits of the
charges, while the others only included procedural documents
relating to the remedying of various violations of the defence
rights. The documents in the twelve binders are repetitive, they
include translations from Russian into Tajik and complaints and
requests lodged by the defendants. The applicant alleges that
the investigators have “artificially inflated” the volume of the
case-file because they charged all the defendants with serious
and especially serious criminal offences without a sufficient
factual basis. In the applicant’s view, the prosecution’s
decision to drop many charges during the final pleadings and his
acquittal pronounced by the court as to their remainder confirm
this allegation. Contrary to the Government’s submissions, the
actual number of witnesses was 61 persons and each of them was
called to the witness stand for some fifteen minutes. As to
interpreters, the applicant emphasises that it was precisely the
domestic authorities’ failure to make interpretation available
in good time that entailed the return of the case for additional
investigation and a delay in the proceedings. As to the lawyers’
conduct, the applicant indicates that on extremely rare
occasions the case was adjourned due to his lawyer’s absence
and, in any event, he consented to the continuation of the
proceedings without his lawyer’s presence. The applicant submits
that the conduct of the domestic authorities caused the most
significant delays in the proceedings: copies of procedural
decisions were handed over to the defendants several weeks after
the expiry of time-limits established in the domestic law, it
took the trial court up to 96 days to fix the first trial
hearing (on 9 January 2002) and the interval between hearings
sometimes lasted as long as 27 days. The “travel time” of the
case between the Vladimir Regional Court and the Supreme Court
was excessive: after the applicant lodged an appeal against the
Regional Court’s decision of 13 March 2002, the case-file did
not reach the Supreme Court until 40 days later, on 28 May 2002,
and then the return route took an additional 25 days (from 12
September to 7 October 2002). The proceedings before the Supreme
Court were also slow-paced: the Supreme Court examined the
applicant’s appeal for three months and six days, from 6 June to
12 September 2002. Finally, between 10 July 2003 and 15 March
2004 the trial could have fixed a tighter hearings schedule so
as to avoid delays between hearings ranging from two to ten
days. The applicant deems that the proceedings have not been
conducted with a reasonable time.
The Court
considers, in the light of the criteria established by its
case-law on the question of “reasonable time”, and having regard
to all the material in its possession, that an examination of
the merits of the complaint is required.
6. Lastly, the Court has examined the remainder of the
applicant’s complaints under Articles 6, 8, 9, 13 and 14 of the
Convention and Article 1 of Protocol No. 1. It notes, however,
that the applicant did not explain why he believed that his
Convention rights guaranteed by the invoked provisions had been
violated.
It follows
that this part of the application is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court
unanimously
Declares
admissible, without prejudging the merits, the applicant’s
complaints concerning:
(a) the
conditions of his detention in facility no. OD-1/T-2 and
transport to and from the courthouse,
(b) the
alleged unlawfulness of his detention after 4 May 2001,
(c) the
allegedly excessive length of his detention on remand,
(d) availability and speediness of judicial review of his
applications for release in the proceedings after 28 April 2001,
(e) the
length of criminal proceedings against him;
Declares
inadmissible the remainder of the application.
Michael O’Boyle
Nicolas Bratza
Registrar
President
