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| The decisions of courts |
| Case of Kalashnikov v. Russia |
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CASE OF KALASHNIKOV
v. RUSSIA (Application no. 47095/99) JUDGMENT STRASBOURG 15 July 2002 This judgment will become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision. In the case of Kalashnikov v. Russia, The European Court of Human Rights (Third Section),
sitting as a Chamber composed of: Mr J.-P. Costa, President, Having deliberated in private
on 18 September 2001 and 24 June 2002, Delivers the following judgment, which was adopted on
the last‑mentioned date: PROCEDURE 1. The
case originated in an application (no. 47095/99) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by a Russian national, Valeriy Yermilovich Kalashnikov (“the applicant”),
on 1 December 1998. 2. The
applicant complained, in particular, about his conditions of detention,
the length of his detention and the length of the criminal proceedings
against him. 3. The
application was allocated to the former Third Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1 of the Rules of Court. 4. The
applicant and the Government each filed observations on the admissibility
and merits (Rule 54 § 3(b)). The parties replied in writing to each
other's observations. 5. A
hearing on the admissibility and merits took place in public in the
Human Rights Building, Strasbourg, on 18 September 2001 (Rule 54 § 4). There appeared before the Court: (a) for
the Government (b) for
the applicant 6. The
Court heard addresses by Mr P. Laptev, Mrs K Moskalenko and Mr N.
Sonkin, and the replies of Mr V. Vlasihin, Mr P. Laptev and Mrs K. Moskalenko
to questions from three judges. At the Court's request, the Government had submitted photographs of the
cell in which the applicant was detained. They also provided a video
recorded film of the renovated cell and nearby area, which renovation had been
made after the applicant's release. 7. By
a decision of 18 September 2001, the Court declared the application
partly admissible. It thereafter considered that an on-site inspection
or “fact-finding mission” was not necessary, as it had sufficient material
in the case-file on which to reach its conclusions. In particular, it
considered that no useful purpose would be served by such an exercise
because the present conditions of the cell, as shown in the video, no
longer bore any resemblance to those at the time of the applicant's
detention, as confirmed by the contemporary photographs. 8. On
1 November 2001 the Court changed the composition of its Sections (Rule
25 § 1), but this case remained with the Chamber constituted within
former Section III. 9. The
parties filed no further observations on the merits of the application. 10. On
28 December 2001 the applicant filed claims for just satisfaction under
Article 41 of the Convention, on which the Government submitted comments. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 11. The
applicant was born in 1955 and lives in Moscow. At the material time
he was the president of the North East Commercial Bank (Ñåâåðî – Âîñòî÷íûé Àêöèîíåðíûé Áàíê). 12. On
8 February 1995 criminal proceedings were initiated against the applicant,
the details of which are set out under sub-heading B below. On 29 June
1995 the applicant was taken into custody and, by a judgment of the
Magadan City Court (Ìàãàäàíñêèé
ãîðîäñêîé ñóä) of 3 August 1999, he was convicted of embezzlement
and sentenced to a term of imprisonment. A. The conditions of detention 13. From
29 June 1995 to 20 October 1999 the applicant was kept in the detention
facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward
No. 1 (ÑÈÇÎ-1)). On 20
October 1999 he was sent to serve his sentence, following the City Court
judgment of 3 August 1999, to the penitentiary establishment
AV-261/3 in the village of Talaya. On 9 December 1999 he was
transferred back to the detention facility in Magadan where he stayed
until his release on 26 June 2000. 1) The
applicant's submissions on the facts 14. As
regards the first period of his detention in the Magadan detention facility,
the applicant alleged that he had been kept in a cell measuring
17 square meters (“m²”) where there were 8 bunk beds. However,
it nearly always held 24 inmates; only rarely did the number fall
to 18. As there were three men to every bunk, the inmates slept taking
turns. The others would lie or sit on the floor or cardboard boxes waiting
for their turn. It was impossible to sleep properly as the television
was on around the clock and, during the day, there was much commotion
in the cell. The light in the cell was never turned off. 15. The
lavatory pan in the corner of the cell offered no privacy. A partition
separated it from a wash stand, but not from the living area and dining
table. The lavatory pan was elevated from the floor by half a meter
while the partition measured 1,1 meters in height. Therefore, the person
using the toilet was in the view of both his cellmates and a prison
guard observing the inmates through a peep-hole in the door. The inmates had to eat their meals in the cell at a
dining table which was only a meter away from the toilet. The meals
were of poor quality. 16. The
cell, which had no ventilation, was stiflingly hot in summer and very
cold in winter. Because of the poor quality of the air in the cell,
a window had to remain open all the time. Being surrounded by heavy
smokers, the applicant was forced to become a passive smoker. The applicant
claims that he was never given proper bedding, dishes or kitchen utensils.
He only received a quilted mattress and a thin flannel blanket from
the administration, and had to borrow kitchenware from cell-mates who
had received these items from relatives. 17. The
cells of the detention facility were overrun with cockroaches and ants,
but no attempt was made to exterminate them. The only sanitary precaution
taken was that once a week the guards gave the inmates a litre of chloride
disinfectant for the lavatory. 18. He
contracted a variety of skin diseases and fungal infections, losing
his toenails and some of his fingernails. During the trial from 11 November 1996
to 23 April 1997 and from 15 April 1999 to 3 August 1999,
a recess was ordered so that he could be treated for scabies. On six occasions detainees, with tuberculosis and syphilis
were placed in his cell and he received prophylactic antibiotic injections. 19. The
applicant submitted that he could only take a walk outside his cell
one hour per day and that usually he was only able to take a hot shower
twice a month. 20. Finally,
the applicant stated that, following his transfer back to the same facility
on 9 December 1999, the detention conditions had not materially improved.
He was not provided with proper bedding, towels or kitchenware. There
was no treatment available for his skin disease due to a lack of proper
medication. His cell was still overrun with cockroaches and there had
been no anti-infestation treatment for 5 years. However, in March-April
2000 the number of inmates in his 8-bed cell was reduced to 11. 2) The
Government's submissions on the facts 21. The
Government claimed that the applicant's cell measured 20,8 m².
The applicant had a separate sleeping berth, bedding, kitchen utensils
and access to health care. The cell was designed for 8 inmates. In connection
with the general overcrowding of the detention facility, each bed in
the cells was used by 2 or 3 inmates. In the applicant's cell there
were 11 or more inmates at any given time. Normally the number of inmates
was 14. The beds were used in turn by several prisoners on the basis
of eight hour shifts of sleep per prisoner. All inmates were provided
with wadded mattresses, cotton blankets and sheets. 22. The
applicant's cell was equipped with a sanitary unit, including a lavatory
pan and a wash stand. The lavatory pan was situated in the corner of
the cell and was separated from the dwelling place by a partition -
1,1 meters high - ensuring privacy. Such standards have been set by
the “Directives on Planning and Constructing Pre-Trial Detention Facilities
of the USSR Ministry of the Interior”, approved on 25 January 1971. The Government submitted photographs to the Court showing
the applicant's cell, which the applicant claimed had been improved
slightly since the beginning of his detention. The Government also provided
a video recording of the facilities after the applicant's release and
their major renovation. 23. The
cell had windows providing fresh air and daylight. There was no possibility
to equip the cell with a ventilation system. In hot weather a window
of the cell door could be opened for better ventilation. Inmates also
had the opportunity to have compact fans delivered to them by relatives. 24. There
was a television in the cell which belonged to the applicant who could
control when to switch it on or off. Programmes were only transmitted
during part of the day in the region. 25. On
11 February 1998 an inmate in the applicant's cell was diagnosed with
syphilis. The inmate was immediately removed to a separate cell and
underwent a complete course of treatment for the disease. The other
inmates, including the applicant, who had shared the cell with this
person, were subjected to appropriate preventive treatment on 26 February
1998 and to serological control measures. This was done pursuant to
the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention
Facilities and Correctional Labour Institutions of the USSR Ministry
of the Interior”, approved on 17 November 1989. In January 1999 one of the blocks in the detention facility
was closed for repairs and the detainees were transferred to vacant
places in other cells. The detainees who were moved to the applicant's
cell stayed there for a week and some of them were ill with tuberculosis.
However, in the opinion of the medical personnel, the latter did not
present a danger to other inmates as these persons were undergoing out-patient
medical treatment. On 2 June 1999, an inmate who was observed to have residual
tuberculosis was placed in the applicant's cell. The inmate underwent
the relapse prevention treatment
for a period of two months. As he did not suffer from tuberculosis in
its open form, there was no danger of its transmission to other inmates. The applicant underwent repeated fluorographic examinations
which showed no abnormality of his thorax. On 15 June 1999, an inmate who was undergoing treatment
for syphilis was placed in the applicant's cell. Medical examinations
performed subsequently showed negative results. Blood tests which were
performed in this connection on the applicant also revealed negative
results. 26. The
applicant was systematically examined by the medical personnel and he
received medical assistance from a dermatologist, therapeutist and stomatologist.
When the applicant was diagnosed with different diseases (neurocirulatory
dystonia, scabies and fungal infection) he received immediate medical
care. There were recesses announced during the trial in order to provide
medical treatment for the applicant. 27. The
applicant could shower every 7 days and was permitted to walk outside
his cell for up to 2 hours a day. 28. Finally,
the Government submitted that, in order to prevent the appearance of
infectious diseases, pre-trial detention facilities take prophylactic
disinfection measures to secure the timely extermination of pathogenic
micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned
ministerial guidelines of 1989. It was conceded, however, that the infestation
of detention facilities with insects was a problem. 3) Medical
records and an expert report 29. According
to the applicant's medical records, he had scabies in December 1996,
allergic dermatitis in July and August 1997, a fungal infection on his
feet in June 1999, a fungal infection on his finger nail in August 1999,
mycosis in September 1999 and a fungal infection on his feet, hands
and groin in October 1999. The records also state that the applicant
received treatment for these medical conditions. 30. A
report by medical experts issued in July 1999 stated that the applicant
was suffering from neurocirculatory dystonia, astheno-neurotic syndrome,
chronic gastroduodenitis, a fungal infection on his feet, hands and
groin and mycosis. B. The criminal proceedings and appeals against
pre-trial detention 31. On
8 February 1995 the applicant became a suspect in the embezzlement of
his bank's funds and was subjected to a preventive measure in the form
of a ban on leaving a specified place. The criminal case was assigned
the number 48529. 32. On
17 February 1995 he was formally charged with misappropriating 2,050,000
shares of another company. 33. On
29 June 1995, by an order of the investigator, which was approved by
the prosecutor, the applicant was arrested and placed in detention on
remand on the ground that he had obstructed the establishment of the
truth in the criminal proceedings. In particular, it was stated in the
order, with references to concrete instances, that the applicant had
refused to turn over certain bank documents necessary for the investigation,
he had brought pressure to bear on witnesses and had tampered with documents.
The order also referred to the seriousness of the offence with which
the applicant was charged. The applicant's detention was subsequently extended
by the competent prosecutor on unspecified
dates. 34. On
4 July 1995, 31 August 1995 and 26 September 1995, the applicant's
defence lawyer filed applications for release from custody with the
Magadan City Court, which rejected them on 14 July 1995, 9 September 1995
and 4 November 1995, respectively. 35. The
applicant contends that from August 1995 until November 1995 no investigative
activity took place as the two investigators in charge of the case were
on holiday, and the person to whom the case was temporarily assigned
undertook no action. 36. On
14 December 1995 the applicant was charged with 8 additional counts
relating to the embezzlement of his bank's funds. 37. On
6 February 1996 the preliminary investigation of the charges against
the applicant was terminated and the case was sent to the Magadan City
Court. 38. On
1 March 1996 the applicant filed with the City Court a request for his
release from custody, which was refused on 27 March 1996. 39. On
the same day the City Court decided to remit the case to the Magadan
Regional Prosecutor for further investigation. The latter filed an appeal
against the decision with the Magadan Regional Court (Ìàãàäàíñêèé
îáëàñòíîé ñóä) which, on 29 April 1996, rejected it. 40. Following
an additional investigation as of 15 May 1996, the Regional Prosecutor
remitted the case to the City Court on 19 June 1996. 41. In
the meantime, on 16 May 1996, the applicant filed an application for
release from custody with the City Court in which he stated that he
was being held in poor conditions and that his health had deteriorated.
His application for release was refused on 26 May 1996. On 23 June 1996 the applicant filed another request
for release. 42. On
11 November 1996 the City Court began its examination of the applicant's
case. On the same day it rejected his request for release filed on 23
June 1996. 43. At
the hearing on 27 December 1996 the applicant asked the City Court to
release him from custody on medical grounds. He stated that there were
21 inmates in his cell with just 8 beds; there was no ventilation in
the cell where everybody smoked; the television was constantly blaring
and he had contracted scabies. Upon receiving a medical certificate
confirming the existence of the disease, the City Court adjourned the
hearing until 14 January 1997. It refused to release the applicant
from custody on the grounds of the seriousness of the offence with which
he was charged and the danger of his obstructing the establishment of
the truth while at liberty. 44. The
examination of the applicant's case by the City Court lasted until 23 April
1997. On 7 May 1997 the case was adjourned due to the removal
from office of the presiding judge for improper conduct unrelated to
the applicant's case. 45. On
15 June 1997 the applicant filed another request for release, referring
to the poor conditions in which he was being detained. 46. In
July 1997 the applicant's case was assigned to another judge who scheduled
a hearing for 8 August 1997. On that day the hearing was postponed because
the defence lawyer could not attend for health reasons. The applicant's
request for release was rejected on the grounds of the seriousness of
the offence with which he was charged and the danger of his obstructing
the establishment of the truth in the criminal case. The applicant's further request for release from custody
filed on 21 September 1997 was refused on 21 October 1997. 47. On
22 October 1997 the applicant complained to the Magadan Regional Court
about his case, asking for its transfer from the City Court to the Regional
Court. He also submitted a complaint to the Supreme Court of Russia
(Âåðõîâíûé Ñóä Ðîññèéñêîé Ôåäåðàöèè) which forwarded it to the Magadan
Regional Court for examination. By letters of 31 October 1997 and 25
November 1997, the Regional Court informed the applicant that there
was no reason for it to assume jurisdiction and suggested he turn to
the City Court with any questions relating to his case. It also requested
the City Court to take measures for the examination of the applicant's
case. 48. On
21 November 1997 he made complaints to different authorities, in particular
the Office of the President of the Russian Federation, the Magadan City
Court, the High Qualification Board of Judges (Âûñøàÿ
êâàëèôèêàöèîííàÿ êîëëåãèÿ ñóäåé Ðîññèéñêîé Ôåäåðàöèè) – a body dealing
with questions of professional competence –
and the Prosecutor General. In his complaints, he submitted,
inter alia, that he was being held in appalling
conditions without any decision on the substance of the charges, that
he had contracted various skin diseases, that his toenails had fallen
off and that he was suffering from a heart condition. 49. By
letter of 5 February 1998, the president of the Magadan City Court informed
the applicant that the court would resume its consideration of his case
before 1 July 1998, referring to its complexity and the heavy workload
of the judges. 50. On
11 February 1998 the Magadan Regional Court forwarded to the City Court
11 complaints made by the applicant, which it had received from the
Prosecutor General, the Supreme Court and other authorities. 51. On
23 February 1998 the applicant commenced a hunger strike with a view
to drawing the attention of the authorities to his lengthy detention
and the absence of court hearings, which he continued until 17 March
1998. 52. On
1 March 1998 the applicant complained about his case to the Office of
the President of Russia and to a parliamentary committee of the State
Duma, requesting their assistance in the transfer of his case to the
Magadan Regional Court. 53. On
3 March 1998 the Department of Justice of the Magadan Region, in response
to the applicant's complaint addressed to the Ministry of Justice of
Russia, stated that the court would be able to deal with his case in
the second half of 1998. 54. Meanwhile,
the applicant lodged a request with the Constitutional Court (Êîíñòèòóöèîííûé Ñóä Ðîññèéñêîé Ôåäåðàöèè)
to review the constitutionality of the provisions of Articles 223-1
and 239 of the Code of Criminal Procedure concerning time-limits for
the start of trials. By letter of 10 March 1998, the Constitutional
Court informed the applicant that, since the impugned provisions did
not lay down any time-limits with regard to the length of detention
while a case is being considered by the courts, his request could not
be considered. 55. The
applicant also complained to the High Qualification Board of Judges
about the delay in the consideration of his case which, by letter of
30 March 1998, asked the Magadan Regional Court to investigate
the matter. 56. On
2 April 1998 the applicant filed a complaint with the Supreme Court
about the delay in setting the date for his trial, in which he also
referred to his poor conditions of detention. A copy of his complaint
was sent to other authorities. All his complaints were forwarded by
the addressee institutions to the Magadan City Court for examination. 57. On
13 April 1998 the Magadan Regional Court informed the applicant that
the City Court had been requested to take measures for the consideration
of his case. It also stated that the case was to be tried by the City
Court and that the Regional Court could only act as a court of cassation.
58. On
25 May 1998 the applicant filed a petition with the City Court asking
for his case to be transferred to the Regional Court for trial. By decision of the president of the Regional Court of
28 May 1998, the applicant's case was transferred to the Khasynskiy
District Court (Õàñûíñêèé ðàéîííûé
ñóä) in order to expedite the proceedings. 59. On
11 June 1998 the applicant complained about the delay in starting court
hearings to the High Qualification Board of Judges. 60. On
16 June 1998 the applicant filed a request for release from custody
with the Khasynskiy District Court in which he stated that his health
had deteriorated as a result of the overcrowding and the poor conditions
in his cell in the detention facility. On the same day, he sent an application to the Khasynskiy
District Court asking it to transfer his case to the Magadan Regional
Court. He submitted that the transfer of his case to the Khasynskiy
District Court was unlawful and that its distance from the city of Magadan
would hamper an objective and fair examination of his case. 61. On
1 July 1998 the applicant complained to the Regional Court that the
Khasynskiy District Court had not yet set a hearing date and asked it
to speed up the proceedings. 62. On
3 July 1998 the case was remitted to the Magadan City Court as the applicant
had expressed his disagreement with its transfer to the Khasynskiy District
Court. 63. On
8 July 1998 the applicant received a letter from the Regional Court
informing him that there were no grounds for it to act as a court of
first instance or to assume jurisdiction in the case. The next day the applicant requested the City Court
to release him, referring to the poor conditions of detention. 64. On
31 July 1998 the applicant complained to the High Qualification Board
of Judges about the prolonged failure of the City Court to examine his
case. On 19 August 1998 his complaint was transmitted to the Magadan
Regional Court with a request to provide information both on the complaint
and on the work of the City Court. On 27 August 1998 the Regional Court
forwarded the applicant's complaint to the City Court. The applicant also submitted a complaint to the Magadan
Regional Court about the delay in starting the trial hearings, which
on 11 August 1998 transmitted the complaint to the City Court.
65. On
7 September 1998 the applicant filed another complaint with the High
Qualification Board of Judges stating that all his previous complaints
had been sent by the Magadan Regional Court to the City Court without
any measures being taken. On 23 September 1998 the applicant's complaint
was forwarded to the Magadan Regional Court with a reminder about the
request for information on the reasons for the prolonged delay in examining
the applicant's case. On 7 September 1998 the applicant also
submitted a complaint about the delay in the proceedings to the Supreme
Court. On 5 October 1998 the applicant submitted further complaints
to the Regional and High Qualification Boards of Judges. 66. On
13 November 1998 the City Court set the hearing date for 28 January 1999. 67. On
25 November 1998 the applicant complained to the High Qualification
Board of Judges about the actions of the President of the Magadan City
Court, apparently requesting the institution of criminal proceedings
against him. On 22 December 1998 the complaint was forwarded for examination
to the president of the Magadan Regional Court with a request to submit
a report to the competent Qualification Board in case the applicant's
allegations proved substantiated. On 16 December 1998 the Magadan Regional Court forwarded
another complaint by the applicant to the City Court. 68. On
18 January 1999 the applicant submitted to the City Court a request
for release from custody. 69. On
28 January 1999 the Magadan City Court decided to send the applicant's
case back to the prosecutor for further investigation due to the violation
of procedural norms by the investigative authorities. These violations
consisted of an incomplete presentation of the case materials to the
accused at the end of the preliminary investigation, as well as an imprecise
recording of file documents. The court refused the applicant's request
for release having regard to the gravity of the charges against him
and the danger of his obstructing the establisment of the truth while
at liberty. The applicant lodged an appeal against the refusal with
the Magadan Regional Court which, on 15 March 1999, dismissed it. The
Regional Court however revoked the decision to send the case back to
the investigative authorities as unfounded and ordered the City Court
to proceed with the trial. In a separate decision, issued on the same
day, it considered the lengthy delay unjustifiable in view of the fact
that the case was not particularly complex, and requested the City Court
to inform it within one month of the measures taken. 70. On
17 March 1999 the applicant submitted to the City Court another request
for release from custody. On the same day he complained to the High Qualification
Board of Judges about his lengthy detention without a court judgment. Five
days later, the applicant submitted a similar complaint to the Regional
Qualification Board of Judges. On 5 April 1999 the applicant filed another complaint
with the High Qualification Board of Judges about the prolonged delay
in the proceedings. 71. On
15 April 1999 the City Court resumed its examination of the applicant's
case. At the hearing on 20 April 1999 the prosecutor requested
that, in view of the length of the applicant's detention, a psychiatric
evaluation of the applicant be carried out in order to determine the
state of his mental health. The City Court granted this request and
adjourned the hearing until 30 April 1999. 72. At
the hearing on 30 April 1999 the applicant unsuccessfully applied for
release from custody. He submitted that he was suffering from a lack
of sleep. In his cell there were 18 inmates who had to sleep in shifts.
He further argued that he could not obstruct the establishment of the
truth in his case as all the investigative measures had already been
taken. The prosecutor participating in the hearing asked the
City Court to request the administration of the detention facility in
which the applicant was being held to provide the applicant with conditions
allowing normal sleep and rest during the court hearings. The prosecutor
further stated that he would submit a similar request to the prosecutor
in charge of supervising detention facilities. The applicant submits that subsequently the competent
prosecutor came to his cell, acknowledged that the conditions were poor,
but stated that the situation in other cells in the detention facility
was no better and that there was no money to improve the conditions. 73. At
the hearing on 8 June 1999 the applicant requested his release. He stated
that in his cell, where there were 18 inmates, he could not prepare
himself adequately to testify before the trial court. He further submitted
that he had contracted scabies twice and that his bed sheets were not
changed. The applicant's request was rejected. 74. At
the hearing on 16 June 1999 the applicant filed another request for
release, referring to the conditions of his detention. He submitted
that he had a fungal infection and that his body was covered with sores
caused by bites from bugs infesting his bed. He was sharing his bed
with two other inmates. Inmates could shower once every two weeks. The
atmosphere in the cell was stifling as everybody smoked. He was feeling
unwell and suffering from a heart condition. His weight had dropped
from 96 kg to 67 kg. He further submitted that he could not obstruct
the examination of his case if released. The City Court decided not to examine the request because
it was apparently made outside the context of the hearing. 75. On
22 June 1999 the High Qualification Board of Judges removed the president
of the Magadan City Court from office, as well as the president of the
Regional Court and his two deputies, due to the delay in examining the
applicant's case. 76. At
the hearing before the City Court on 23 June 1999, the applicant stated
that he was feeling unwell and that he could not participate. The court
ordered a medical examination of the applicant by a commission of experts
in order to determine whether his state of health allowed him to take
part in the proceedings and whether he should be hospitalised. In their conclusions issued on an unspecified date in
July 1999, the experts found that the applicant was suffering from a
number of medical conditions (see paragraph 30 above). They considered
that the treatment of these conditions did not require hospitalisation
and that the the applicant could remain in the detention facility. They
also considered that the applicant's state of health allowed him to
attend the court hearings and to give testimony. 77. At
the hearing on 15 July 1999, the applicant requested the trial court
to release him from custody. He stated that the court had nearly concluded
the examination of the evidence and that he could not obstruct the establishment
of the truth. His request was refused. 78. In
another ruling issued on the same day, the City Court noted that, in
the period from 15 April until 15 July 1999, it had examined more than
30 applications submitted by the applicant, including repetetive applications
on previously rejected motions. It noted that the applicant had stated
that he would testify only if his applications were granted and considered
that such a position amounted to a deliberate attempt to delay the proceedings. 79. The
City Court heard 9 of the 29 witnesses who were to be summoned before
it. The testimonies of 12 absent witnesses, which had been given during
the pre-trial investigation, were read out in open court. 80. By
a judgment of 3 August 1999, the City Court found the applicant guilty
on one count and acquitted him on two of the counts contained in the
indictment, which had preferred 9 separate charges. It sentenced him
to 5 years and 6 months' imprisonment in a correctional colony with
a general regime, his term running from 29 June 1995. The City Court
considered that the preliminary investigation had been of poor quality
and that the investigators had unjustifiably attempted to increase the
number of counts in the indictment. It also found an infringement of
procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the
relevant documents to the court. These shortcomings had had to be corrected
at the trial, which had caused a delay. The court noted that, in the
course of the investigation, there had been a lack of proper procedural
supervision by those in charge of the investigation and the prosecutor's
office of the Magadan Region. In a separate ruling on the same day, the City Court
decided to send part of the indictment back to the prosecutor for an
additional investigation. The
applicant appealed against the ruling to the Supreme Court, which on
30 September 1999 found the decision lawful. 81. The
City Court judgment of 3 August 1999 was open to appeal to the Regional
Court within 7 days of its pronouncement. The applicant did not file
an appeal in cassation as he considered that the Regional Court had
contributed to his conviction and thus that an appeal had no prospects
of success. On 11 August 1999 the judgment of the City Court entered
into force. 82. On
11 August 1999 the applicant submitted to the director of the detention
facility where he was being held a request to transfer him to the logistical
services team in the same facility to serve his sentence. 83. On
25 October 1999 the applicant lodged an extraordinary appeal with the
President of the Supreme Court of Russia for a review of the City Court
judgment. On 11 November 1999 the appeal was dismissed. On 30 November 1999 the applicant filed another extraordinary
appeal with the Supreme Court, which rejected it on 9 June 2000. 84. On
24 September 1999, in the continuing criminal proceedings, the preventive
custody measure was replaced by a ban on leaving a specified place.
However, he remained in custody, serving his original sentence. 85. On
29 September 1999 the proceedings concerning the remainder of the charges
were terminated on the ground that the acts committed by the applicant
did not constitute a criminal offence. On 30 September 1999, however, a new charge relating
to the misappropriation of property in his capacity as the bank's president
was brought against the applicant. 86. On
19 October 1999, upon completion of the preliminary investigation, the
competent prosecutor approved the bill of indictment and sent the case
to the Magadan City Court for trial. The bill of indictment bore the
original case no. 48529 and stated that the proceedings in that
case had been initiated on 8 February 1995. The applicant's trial
started on 20 December 1999. By a judgment of 31 March 2000 the
City Court acquitted the applicant of the new charge. 87. On
26 June 2000 the applicant was released from prison following an amnesty
declared on 26 May 2000. II. RELEVANT DOMESTIC LAW 88. A. Constitution
of the Russian Federation Point 6 (2) of Section 2 “Until criminal-procedural legislation of the Russian
Federation has been brought into line with the provisions of this Constitution,
the previous procedure for the arrest, detention and keeping in custody
of persons suspected of committing a crime shall apply.” 89. B. Code
of Criminal Procedure Article 11 (1): Personal inviolability “No one may be arrested otherwise than on the basis
of a judicial decision or a prosecutor's order.” Article 89 (1): Application of preventive measures “When there are sufficient grounds for believing that
an accused person may evade an inquiry, preliminary investigation or
trial or will obstruct the establishment of the truth in a criminal
case or will engage in criminal activity, as well as in order to secure
the execution of a sentence, the person conducting the inquiry, the
investigator, the prosecutor and the court may apply one of the following
preventive measures in respect of the accused: a written undertaking
not to leave a specified place, a personal guarantee or a guarantee
by a public organisation, or placement in custody.” Article 92 : Order and decision on the application of a preventive
measure “On the application of a preventive measure a person
conducting an inquiry, an investigator and a prosecutor shall make a
reasoned order, and a court shall give a reasoned decision specifying
the criminal offence which the individual concerned is suspected of
having committed, as well as the grounds for choosing the preventive
measure applied. The order or decision shall be notified to the person
concerned, to whom at the same time the procedure for appealing against
the application of the preventive measure shall be explained. A copy of the order or decision on the application of
the preventive measure shall be immediately handed to the person concerned.” Article 96: Placement in custody “Placement in custody as a preventive measure shall
be done in accordance with the requirements of Article 11 of this Code
concerning criminal offences for which the law prescribes a penalty
in the form of deprivation of freedom for a period of more than one
year. In exceptional cases, this preventive measure may be applied in
criminal matters for which a penalty in the form of deprivation of freedom
for a period of less than one year is prescribed by law.” Article 97: Time-limits for pre-trial detention “A period of detention during the investigation of offences
in criminal cases may not last longer than two months. This time-limit
may be extended by up to three months by a district or municipal
prosecutor ... if it is impossible to complete the investigation and
there are no grounds for altering the preventive measure. A further
extension of up to six months from the day of placement in custody may
be effected only in cases of special complexity by a prosecutor of a
constituent part of the Russian Federation ... An extension of the time-limit for such detention beyond
six months shall be permissible in exceptional cases and solely in respect
of persons accused of committing serious or very serious criminal offences.
Such an extension shall be effected by a deputy of the Prosecutor General
of the Russian Federation (up to one year) and by the Prosecutor General
of the Russian Federation (up to 18 months). No further extension of the time-limit shall be permissible,
and the accused held in custody shall be releasable immediately. The documents of a completed investigation in a criminal
case shall be produced for consultation by the accused and his defence
counsel not later than one month before the expiry of the maximum time-limit
for remand in custody, as prescribed in the second paragraph of the
present Article. In the event of the accused being unable to consult
the case documents before the expiry of the maximum time-limit for remand
in custody, the Prosecutor General of the Russian Federation, [or] a
prosecutor of a constituent part of the Russian Federation ... may,
not later than five days before the expiry of the maximum time-limit
for remand in custody, apply to the judge of the “oblast”, “krai” or
comparable court for an extension of this time-limit. Not later than five days from the day of receipt of
the application, the judge must take one of the following decisions: 1. to extend the time-limit for remand in custody until the accused and h |