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12
February 2009
FIRST
SECTION
Application no. 16264/05
by Vasiliy Nikolayevich VASILYEV
against
Russia
lodged on 26 April 2005
STATEMENT OF FACTS
THE FACTS
The
applicant, Mr Vasiliy Nikolayevich Vasilyev, is a Russian
national who was born in 1960 and lived before his arrest in the
town of Vladimir.
He is represented before the Court by
Mr F. Bagryanskiy, a
lawyer practising in
Vladimir.
The facts
of the case, as submitted by the applicant, may be summarised as
follows.
A.
Criminal proceedings against
the applicant
On 23
October 2004 an investigator of the Vladimir Town prosecutor's
office instituted criminal proceedings against the applicant on
suspicion of aggravated rape.
1. Arrest and detention
On 25
October 2004 the applicant was arrested. The arrest record was
issued on the same day, at 8.20 p.m., and did not indicate the
grounds for the applicant's arrest, save for a reference to
Article 91 § 2 of the Russian Code of Criminal Procedure. The
applicant signed the arrest record, noting that he had been
informed of his constitutional rights of an accused, including
the right to remain silent and to be assisted by counsel. The
record also contained a lengthy handwritten statement by the
applicant's lawyer, Mr Bagraynskiy. The statement read as
follows:
“[The
applicant] stated as follows on account of his arrest:
The
statement by counsel, Mr Bagryanskiy:
1)
As I was informed by [the applicant], he
had, in fact, been arrested at 5.15 p.m. Subsequently, he was
brought to the Frunzenskiy District police station in Vladimir where, in the duty unit, he was
submitted to a body search (attested witnesses were not
present). At approximately 8.00 p.m. on the same day (25 October
2004) he was brought to the Vladimir Town prosecutor's office.
Thus, the time of the [applicant's] arrest as indicated in the
arrest record (8.20 p.m.) was incorrect. The real time of the
[applicant's] arrest was 5.15 p.m.
2)
The arrest record does not
mention concrete grounds for [the applicant's] detention. [The
arrest record] mentions Article 91 § 1 (2) of the Russian Code
of Criminal Procedure, without any further details. Therefore it
is unclear what the real grounds for [the applicant's] arrest
are. In particular, it is unclear who indentified [the
applicant] and [there is] no other ground. Moreover, the record
does not indicate the motives for the [applicant's] arrest.
3)
The record does not mention
that [the applicant] was submitted to a body search in the duty
room of the Frunzenskiy District police station in Vladimir
(counsel and attested witnesses did not participate) and that
certain personal belongings (two mobile phones, car keys, home
keys, etc, money) were seized. The search record was not even
drawn up. The [applicant's] car was also seized.
The
abovementioned allows concluding that [the applicant] was
arrested unlawfully and that he should be released immediately.
In
addition: At 9.15 p.m. the investigator amended the record (he
made a correction under the heading “Grounds for the arrest”,
changing the number of the paragraph [of the Article] and
deleted the mention of the subparagraph). This fact makes it
even more unclear what the grounds for [the applicant's] arrest
were.”
It appears
that the investigator made a handwritten note in the arrest
record, stating that the applicant had not been searched.
After the
investigator had drawn up the arrest record, he began
questioning the applicant. A record shows that the questioning
started at 9.35 p.m. The record bears the applicant's signature
after the paragraph stating that he had been explained the
nature of the accusations against him, that is that he was
suspected of having committed gang rape on 23 October 2004. The
applicant made a handwritten entry in the record noting that he
had decided to make use of his constitutional rights and that he
would remain silent. The applicant's counsel, Mr Bagryanskiy,
wrote in the record that the applicant had not been provided
with details surrounding the alleged criminal offence and that
he therefore had not been explained the reasons for his arrest.
(a) Authorisation of the
detention on remand (detention order of 27 October 2004)
On 27
October 2004 the Leninskiy District Court of Vladimir authorised
the applicant's detention on remand, holding as follows:
“[The
applicant] is employed [and] has the permanent place of
residence.
However,
he was convicted before; [the parties] did not provide the court
with information showing that the criminal record had expired.
[The applicant] is suspected of having committed a serious
criminal offence against an individual; [the offence] is
punishable by imprisonment. The victim identified [the
applicant] as the perpetrator of the criminal offence against
her. It follows that, if released, [the applicant] may influence
the victim during the pre-trial and judicial investigation;
therefore, the victim took part in the identification parade in
the conditions preventing [the applicant] from seeing [her].
Having
regard to the abovementioned, the court accepts the motion of
the senior investigator of the Vladimir Town prosecutor's office
for [the applicant's] placement in custody.”
The
applicant's lawyer appealed, arguing that the applicant had not
been properly and promptly informed of the reasons for his
arrest and that his detention was unlawful. Several days later
the lawyer filed an additional appeal statement, asking to
release the applicant on bail or to apply another, more lenient,
measure of restraint. The lawyer, relying on Article 3 of the
Convention, urged the Regional Court to take into account the
appalling conditions of detention to which the applicant was to
be subjected during a prolong period of time. He also argued
that the applicant had no criminal record and that the District
Court had not had any information disputing that fact.
On 5
November 2004 the Vladimir Regional Court upheld the
detention order, endorsing the reasons given by the District
Court. It noted, in particular, the gravity of the charges
against the applicant and his previous conviction, as confirmed
by police records presented by the prosecution authorities and
undisputed by the applicant. As regards the lawyer's argument
pertaining to the conditions of the applicant's detention, the Regional Court
noted that it was not the courts' task to deal with the matter
in that set of the proceedings.
(b)
Extension of the detention
(order of 22 December 2004)
On 22
December 2004 the Leninskiy District Court extended the
applicant's detention until 11 January 2004 inclusively, noting
the applicant's “personality”, the gravity of the charges
against him and his liability to abscond, re-offend and pervert
the course of justice.
The
applicant's lawyer appealed arguing that the detention was
unlawful and excessively long. The lawyer also restated his
arguments raised in the statement of appeal against the
detention order of 27 October 2004.
On 1
February 2005 the Vladimir Regional Court upheld the
decision of 22 December 2004, holding as follows:
“Having
examined the materials presented in the appeal statements, the
court decides as follows.
While
examining the issue of the necessity to extend [the applicant's]
detention, the judge correctly took into account the gravity of
the charges [and] the information on the accused's character.
It follows
from the presented materials that [the applicant] was held
liable for an administrative offence.
The
judge's conclusion that [the applicant] is liable to abscond
from the pre-trial investigation and judicial proceedings, to
continue criminal activities, to pervert the course of justice
is corroborated by the record of an additional interrogation of
the victim which is enclosed to the materials and from which it
follows that the victim receives insulting phone calls which
worry her and which she considers a measure of mental pressure
applied to her due to the institution of the criminal
proceedings.
The
extension of [the applicant's] detention is also connected to
the necessity of performing investigative actions aimed at the
closing of the pre-trial investigation.
The judge
examined a possibility of applying another, more lenient,
measure of restraint to [the applicant] which was reflected in
the decision which states that a change of the measure of
restraint applied to the accused is unreasonable.
...
By virtue
of the requirements of the Russian Code of Criminal Procedure,
when the judge examined an issue of an extension of the
detention, [he] did not have to take into account the conditions
of [the applicant's] detention, as raised by the lawyer in his
appeal statement”.
(c) Request for release and
decision of 14 April 2005
On 9
December 2004 the applicant's counsel, Mr Bagryanskiy, motioned
the Leninskiy District Court to release the applicant, arguing
that his arrest and subsequent detention were unlawful.
On 14
April 2005 the Leninskiy District Court discontinued the
proceedings on the ground that the applicant was committed to
stand trial and that the first trial hearing had been listed for
8 February 2005.
On
17 May 2005 the Vladimir Regional Court dismissed the
applicant's appeal, upholding the District Court's findings.
(d) Detention from 11
January to 13 October 2005
i. Request for release and
decision of 17 January 2005
On 11
January 2005 the period of the applicant's detention authorised
by the decision of 22 December 2004 expired. No further
detention order was issued. Two days later the applicant was
committed to stand trial before the Frunzenskiy District Court.
It appears that he had been served with the final version of the
bill of indictment being charged with aggravated robbery and
sexual assault, in addition to aggravated rape.
On 17
January 2005 Mr Bagryanskiy lodged a complaint with the
Frunzenskiy District Court, seeking the applicant's release. In
particular, Mr Bagryanskiy noted that there was no lawful order
authorising the applicant's detention after 11 January 2005.
Counsel for the applicant's co-defendant joined the motion.
On 25
January 2005 the Frunzenskiy District Court dismissed the
request, noting that the applicant and his co-defendant were
charged with a serious criminal offence, that the applicant had
been held administratively liable and that there were reasons to
believe that, if released, the applicant and his co-defendant
would abscond, threaten the victim and pervert the course of
justice. The District Court concluded that there were no grounds
to change the measure of restraint.
On
16 March 2005 the Vladimir Regional Court upheld the decision of
25 January 2005, finding that the lawyers' arguments that the
defendants had permanent places of work and residence in
Vladimir and that they had no intention to abscond did not
suffice to conclude that the District Court's decision was
incorrect. The Regional Court also noted that there were
no grounds to release the defendants after 11 January 2005
because they were considered to be detained “pending judicial
proceedings”. In the Regional Court's opinion, after the
District Court had received the criminal case file, it had six
months to examine the question of the applicant's detention.
ii.
Remittal for an additional
investigation and request for release (decision of 27 April
2005)
In April
2004 a lawyer for the applicant, Mr G., asked the Frunzenskiy
District Court to return the case to the prosecutor's office for
an additional investigation because the investigators had
committed various procedural violations and had violated the
applicant's defence rights. At the same time, counsel, Mr
Bagryanskiy, sought the applicant's release.
On 27
April 2005 the District Court remitted the case for an
additional investigation and noted that the measure of restraint
applied to the applicant and his co-defendant “should remain
unchanged” as the circumstances which had served as the grounds
for their arrest were still present and there were no reasons to
authorise a change.
On
28 June 2005 the Vladimir Regional Court upheld the
decision, noting that it was well-founded. The Regional Court also found that the
co-defendants were detained within the six-month period
authorised by the provisions of the Russian Code of Criminal
Procedure.
(e) Extension of the
detention until 13 October 2005 (order of 7 July 2005)
On 7 July
2005 the Frunzenskiy District Court authorised the extension of
the applicant's and his co-defendant's detention for an
additional three months, until 13 October 2005. The District
Court stated that the authorised period of the applicant's
detention was to expire on 13 July 2005 because the District
Court had received the case file on 13 January 2005. It
concluded that the defendants had been charged with serous
criminal offences and were liable to abscond, obstruct the
course of justice and threaten the victim.
On
11 August 2005 the Vladimir Regional Court upheld the
decision, reasoning as follows:
“Having
discussed the arguments of the appeal statement, the court
considers that the decision [of 7 July 2005] is lawful and
well-founded.
When the
[District] court was taking the decision, [it] took into account
the gravity of the three criminal offences which are punishable
by more than ten years' imprisonment and which are considered
serious, presenting particular danger to the society. The
arguments laid down in the appeal statement were subject of the
court's examination and the respective findings pertaining to
them were made. [It] was found that there were no grounds to
change the measure of restraint. The abovementioned findings are
reasoned and the reasoning should be considered convincing.
The courts
of the first and second instances examined the complaints that
the arrest on 25 October 2004 was performed with violations and
that after 11 January 2005 [the applicant and his co-defendant]
were detained unlawfully, and found them to be unsubstantiated.”
(f) Extension of the
detention until 13 January 2006 (order of 13 October 2005)
On 13
October 2005 the Frunzenskiy District Court, by the same
decision, extended the applicant's and his co-defendant's
detention until 13 January 2006. The wording of the decision was
identical to the one issued on 7 July 2005.
On
23 November 2005 the Vladimir Regional Court upheld the
decision, endorsing the reasons given by the District Court.
(g) Extension of the
detention until 13 April 2006 (order of 11 January 2006)
On 11
January 2006 the Frunzenskiy District Court, in the decision
identical to the ones issued on 7 July and 13 October 2005,
extended the applicant's and co-defendant's detention until 13
April 2006.
On 7
March 2006 the Vladimir Regional Court dismissed the
applicant's appeal, concluding that the District Court's
findings were lawful and reasoned.
2. Conviction
On 10
April 2006 the Frunzenskiy District Court found the applicant
guilty as charged and sentenced him to five years' imprisonment.
The judgment was not appealed against and became final.
B. Conditions of detention
On 3
November 2004 the applicant was placed in detention facility no.
IZ-33/1 in Vladimir.
During the entire period of his detention he was alternatively
kept in cells nos. 56 and 52. Cell no. 56 measured 56 square
metres and had 42 sleeping places. It usually housed 45 to 55
detainees. Cell no. 52 measured 21 square metres, had 21
sleeping places and accommodated 25 to 30 inmates. The applicant
insisted that due to severe overcrowding he had not had an
individual bunk. Inmates had to take turns to sleep. The
applicant further pointed out that
the living area per inmate varied from 0.7 to 1.3 square metres.
Furthermore, part of
the cell surface was occupied by metal three-tier bunks serving
as beds for the occupants. The rest of the space was taken up by
a wooden table, bench, shelves, a tap, and a lavatory pan. That
arrangement left inmates with literally no free space where they
could move.
A lavatory
pan was in the corner of the cell. It was merely several metres
away from the wooden table and sleeping bunks and was not
separated from the living area by a partition. Furthermore, the
facility administration did not provide inmates with cleaning
fluids. The pan was always dirty and it did not have a lid,
spreading unpleasant odour in the cell.
The cells
did not have an artificial ventilation system. It was damp,
stuffy and dark inside. Inmates were allowed to smoke in the
cells. It was unbearable for the applicant who does not smoke.
Detainees also washed their clothes in the cells, creating
excessive humidity. Cell no. 56 had two windows and cell no. 52
had one. The windows were small and did not bring sufficient
light in the cells. Fluorescent lighting was constantly on. The
cells were infected with bed-bugs, lice and cockroaches but the
administration did not provide any insecticides.
Inmates
were not provided with toiletries. They were allowed to take a
shower once in seven days. Fifteen minutes were afforded to 15
to 20 inmates, while only 4 to 5 shower heads worked.
Food was
very scarce and of low quality.
Inmates
were allowed to have an outdoor walk for an hour in facility
courtyards. The largest courtyard measured 60 square metres and
the smallest one measured 18 square metres. Eight to forty
inmates were placed in a courtyard at the same time. The
courtyards were covered by metal roofs which left merely a metre
of empty space between walls and the roof.
The
applicant lodged a number of complaints before various domestic
authorities, including courts, alleging appalling conditions of
his detention. The complaints were to no avail.
COMPLAINTS
1. The
applicant complained under Article 3 of the Convention that the
conditions of his detention had been inhuman and degrading.
2. The
applicant complained under Article 5 § 1 and Article 13 of the
Convention that he had been unlawfully arrested on 25 October
2004, that his subsequent detention either had been authorised
in violation of legal requirements or had lacked any legal
authorisation and that his lengthy detention had not had any
grounds.
3. The
applicant complained under Article 5 § 2 of the Convention that
he had not been promptly informed of the reasons for his arrest.
4. The
applicant complained under Article 5 § 4 and Article 13 of the
Convention that the domestic courts had not examined speedily
his requests for release and his complaints about the detention
orders, in particular, his complaint against the decisions of 22
December 2004 and 25 January 2005; and that the courts refused
to examine the merits of the lawyer's request for release lodged
on 9 December 2004.
QUESTIONS TO THE PARTIES
1. The parties are requested to answer the following questions
concerning the applicant's detention in facility no. IZ-33/1 in
Vladimir, in respect of
each cell where the
applicant was detained from 3 November 2004:
a. What
are the dimensions of the cell? How many persons were detained
simultaneously with the applicant?
b. What
were the dimensions of the windows? Was it possible to read or
work by natural light?
c. Did the
windows allow entrance of fresh air? Did the windows have glass
on them?
d. Was
there artificial light? Was it ever switched off?
e. Was the
cell ventilated? If so, was ventilation natural or mandatory?
f. Was the
cell equipped with sanitary installations adequate to enable the
applicant to comply with the needs of nature when necessary? Did
the placement of the pan offer privacy?
g. How
often could the applicant have a bath or shower?
h. Did the
applicant have a separate bed and appropriate bedding?
i. Was
drinking water available to the applicant?
j. What
was the applicant's daily food ration?
k. Was
medical assistance available to the applicant? Have the
Government met their obligation to ensure that that applicant's
health and well-being are being adequately secured by, among
other things, providing him with the requisite medical
assistance (see
McGlinchey and Others v. the United Kingdom,
no. 50390/99, § 46, ECHR 2003‑V), as required by Article 3
of the Convention.
l. Were
the conditions of the applicant's detention compatible with
Article 3 of the Convention?
2. Was
the applicant's arrest and further detention on remand
compatible with the requirements of Article 5 § 1 of the
Convention? In particular, was the applicant's detention between
12 January and 13 July 2005, in accordance with a procedure
prescribed by law?
3.
Was the length of the applicant's detention on remand in breach
of the “reasonable time” requirement of Article 5 § 3 of the
Convention? In particular, were the domestic courts' decisions
extending the applicant's detention founded on “relevant and
sufficient” reasons and were the proceedings conducted with a
“special diligence” (cf.
Olstowski v. Poland,
no. 34052/96, § 78, 15 November 2001;
Ilijkov v. Bulgaria,
no. 33977/96, § 81, 26 July 2001)?
4. Was
the procedure by which the applicant sought to challenge the
lawfulness of his pre-trial detention in conformity with Article
5 § 4 of the Convention? In particular:
(a) were
the merits of the applicant's request for release, lodged on
9 December 2004, examined by a competent court?(b) did the length of the proceedings in the present case, by
which the applicant sought to challenge the lawfulness of his
pre-trial detention, comply with the “speed” requirement of
Article 5 § 4 of the Convention?
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