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22 June
2010
FIRST
SECTION
Application no. 3346/06
by Mikhail Mikhaylovich SHISHKIN
against
Russia
lodged on 5 November 2005
STATEMENT OF FACTS
THE FACTS
The
applicant, Mr Mikhail Mikhaylovich Shishkin, is a Russian
national who was born in 1976 and lives in Gus-Khrustalnyy, the
Vladimir Region. He is represented before the Court by Mr
M.V. Ovchinnikov, a lawyer practising in
Vladimir.
A. The circumstances of the
case
The facts
of the case, as submitted by the applicant, may be summarised as
follows.
1. The applicant's initial
arrest and detention
According
to the applicant, on 11 April 2005 approximately at 12 in the
afternoon he was stopped in the street by policemen and brought
to a local police station. His arrest was documented only at
11.35 p.m.
On 13 April
2005 the Gus-Khrustalnyy Town Court of the Vladimir Region
authorised the applicant's detention on remand on the grounds
that he was suspected of a serious crime, was identified by the
victim, did not work, had a criminal record and for those
reasons could abscond, reoffend, influence the victim and other
parties to the proceedings, destroy evidence, or otherwise
obstruct the proper administration of justice. No reference to
“exceptional circumstances” that would permit the application of
the custodial measure to a suspect, the applicant's procedural
status at the time, was made in the decision.
On 15
April 2005 the applicant's lawyer lodged an appeal with the
Vladimir Regional Court. He
complained inter alia that the applicant's arrest from 12:00 to 23:35 on 11
April 2005 had been unlawful. On 16 May 2005 the appeal court
upheld the detention order. It did not examine the merits of the
complaint concerning the applicant's twelve-hour undocumented
police custody. However, in the descriptive part of the judgment
it mentioned the prosecutor's observations, according to which
the investigative authorities had initially questioned the
applicant as a witness and only after he had been identified by
the
alleged victim, they had decided to arrest him.
In the
meantime, on 19 April 2005 the applicant was charged with
aggravated rape.
On 8
June 2005, the Town Court extended his detention until
11 August 2005.
It is
unknown whether the criminal charges against the applicant have
been determined.
2. Conditions of the
detention
On an
unspecified date in April 2005 the applicant was placed in
Vladimir
remand prison OD-1/T-2.
All cells
where the applicant was detained were overcrowded. The number of
inmates exceeded that of beds and therefore the detainees had to
sleep in shifts.
The beds
took up a large portion of the floor space. There also were a
dining table, a basin, a lavatory pan and shelves.
The
lavatory pan, always dirty and stinky, was in the corner of the
cell and a few metres away from the table and the beds.
The cells
had no forced ventilation that resulted in high humidity and
stuffiness.
Natural
light that came through windows was insufficient for reading and
writing. The artificial lighting was never switched off.
The cells swarmed with insects.
The applicant never received individual toiletries. A bar of
soap that was given by the prison authorities had to be shared
among several detainees.
There was
no hot water in the cells. Cold shower was available once in a
week.
The food
was of low quality, often unfit for eating. The tap water the
detainees had to consume was hardly potable.
The
applicant was afforded a walk in a facility's small and dirty
exercise yard. It was surrounded by solid concrete walls and
covered with a metal roof which blocked free flow of air.
Therefore, outdoors was scarcely any different from indoors.
Many times
he complained to competent national authorities about the
detention conditions but all to no avail.
B. Relevant domestic law
Chapter 13 of the Code of Criminal Procedure governs the
application of preventive measures.
Preventive measures may be applied to a
suspect or a person charged with an offence where it is probable
that the person in question might abscond, continue criminal
activities, threaten witnesses or interfere with the
investigation (Article
97).
When deciding on the necessity
to apply a preventive measure, it is necessary to take into
account the gravity of the charges and various personal details
of the person concerned (Article 99).
Only in exceptional cases a
preventive measure may be applied to a suspect (Article 100).
COMPLAINTS
The
applicant complains under Article 3 of the Convention about poor
detention conditions in Vladimir remand prison OD-1/T-2.
He also
complains under Article 5 § 1 of the Convention that his
detention from 12 a.m. to 11.35 p.m. on 11 April 2005 was not
documented and that the Gus-Khrustalnyy Town Court, in its
decision of 13 April 2005, failed to give sufficient reasons for
his detention.
The
applicant finally complains under Article 5 § 4 of the
Convention that the appeal by his lawyer against the court
decision of 13 April 2005 was not considered speedily.
QUESTIONS TO THE PARTIES
1. In respect of each cell in which the applicant was held in
Vladimir
remand prison OD-1/T-2 the Government are requested to indicate:
(a) The
cell number and the dates of the applicant's stay;
(b) The
floor surface of the cell (in square metres);
(c) The
number of bunk beds and/or sleeping places that were available
in the cell;
(d) The
exact number of detainees held in the cell (supported by copies
of original documents, such as cell registers (покамерные
карточки)
or statistical data);
(e) Whether the cell was equipped with a
functioning mandatory
ventilation;
(f) What
kind of lighting was available in the cell; if the lighting was
natural, indicate the dimensions of the window(s) and the number
and thickness of metal bars; if the lighting was artificial,
indicate the number of bulbs and their power;
(g) The
placement of the toilet pan (corner, wall-mounted, etc.) and the
distances between (i) the pan and the dining table; and (ii) the
pan and the nearest sleeping place.
(h) Whether there was a partition separating the toilet pan
from the rest of the cell; its height and the material it was
made of;
(i) The
frequency of outdoor exercise, the surface of the exercise yard
(in square metres) and the type of the roof above the yard
(metal bars, solid roof, netting, etc.)
2. In the
light of the replies to the above questions, were the conditions
of the applicant's detention compatible with Article 3 of the
Convention?
3. Was the
applicant's deprivation of liberty on 11 April 2005 in breach of
Article 5 § 1 of the Convention? The Government are requested to
submit the records of all investigative procedures in which he
took part on that date.
4. Was
the applicant's deprivation of liberty on 13 April 2005 “lawful”
within the meaning of Article 5 § 1 of the Convention? In
particular, were the provisions governing the applicant's
detention sufficiently precise and foreseeable to offer
protection from arbitrary detention
(see
Gusinskiy v. Russia, no. 70276/01, §§ 62-66, ECHR 2004‑IV)?
5. Did the applicant have at his disposal an effective
procedure by which he could challenge the lawfulness of his
detention, as required by Article 5 § 4 of the Convention? In
particular, was the appeal by his lawyer against the decision of
the Gus-Khrustalnyy Town Court of 13 April 2005 considered
“speedily”, as required by Article 5 § 4 of the Convention?
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