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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 his counsel have consulted the case documents
and the case has been referred to the trial court by the prosecutor
but, anyway, for not more than six months; 2. to reject the prosecutor's application
and to release the person concerned from custody. Under the same procedure, the time-limit for remand
in custody may be extended, if necessary, to accede to a request by
the accused or his counsel to pursue the preliminary investigation further. If a court remits a case for further investigation when
the time-limit for the accused's remand in custody has expired, but
the circumstances of the case preclude any modification of the custody
measure, the time-limit for the remand in custody shall be extended
by the prosecutor supervising the investigation for up to one month
from the date on which the case reaches him. Any further extension of
the time-limit shall take account of the time spent by the accused in
custody before the referral of the case to court, and shall be effected
in the manner and within the limits prescribed in the first and second
paragraphs of this Article. An extension of the time-limit for remand in custody
in accordance with the present Article is subject to appeal to a court
and to judicial review of its legality and justification under the procedure
provided for in Articles 220¹ and 220² of the present Code.” Article 101: Cancellation or modification of a preventive measure “A preventive measure shall be cancelled when it ceases
to be necessary, or else changed into a stricter or a milder one if
the circumstances of the case so require. The cancellation or modification
of a preventive measure shall be effected by a reasoned order of the
person carrying out the inquiry, the investigator or the prosecutor,
or by a reasoned court decision after the case has been transferred
to a court. The cancellation or modification, by the person conducting
the inquiry or by the investigator, of a preventive measure chosen on
the prosecutor's instructions shall be permissible only with the prosecutor's
approval.” Article 223-1: Setting a date for a court hearing “If the accused is kept in custody, the question of
setting a date for a court hearing must be decided no later than 14
days from the seizure of the court.” Article 239: Time-limits for examination of the case “The examination of a case before the court must start
no later than 14 days from the fixing of a hearing date.” 90. C. Federal
Law on the Detention on Remand of Suspects and Persons Accused of Offences According to Article 21 of this Law, applications and
complaints of suspects and accused persons to State agencies, bodies
of local self-government and non-governmental organisations are sent
through the administration of the detention facility. Applications and complaints addressed to a public prosecutor,
a court or other State agencies supervising detention facilities for
suspects and accused persons are not subject to censorship and will
be forwarded to the addressee in a sealed envelope no later than the
next working day. III. RESERVATION OF THE RUSSIAN FEDERATION
91. The instrument of ratification of the
Convention deposited by the Russian Federation on 5 May 1998 contains
the following reservation: “In accordance with Article 64 of the Convention, the
Russian Federation declares that the provisions of Article 5 paragraphs
3 and 4 shall not prevent ... the temporary application, sanctioned
by the second paragraph of point 6 of Section Two of the 1993 Constitution
of the Russian Federation, of the procedure for the arrest, holding
in custody and detention of persons suspected of having committed a
criminal offence, established by Article 11 paragraph 1, Article 89
paragraph 1, Articles 90, 92, 96, 96‑1, 96-2, 97, 101 and 122
of the RSFSR Code of Criminal Procedure of 27 October 1960,
with subsequent amendments and additions.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION 92. The applicant complained about his conditions
of detention in the Magadan detention facility IZ-47/1. He invoked Article
3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman
or degrading treatment or punishment.” The applicant referred in particular to the overcrowding
and insanitary conditions in his cell, as well as the length of the
period during which he was detained in such conditions, which had an
adverse effect on his physical health and caused humiliation and suffering.
93. The Government argued that the applicant's
conditions of detention could not be regarded as torture or inhuman
or degrading treatment. The conditions did not differ from, or at least
were no worse than those of most detainees in Russia. Overcrowding was
a problem in pre-trial detention facilities in general. The
authorities had had no intention of causing physical suffering to the
applicant or of harming his health. The administration of the detention
facility took all available measures to provide medical treatment for
those persons suffering from any disease and to prevent the contagion
of other inmates. 94. It was acknowledged that, for economic
reasons, conditions of detention in Russia were very unsatisfactory
and fell below the requirements set for penitentiary establishments
in other member States of the Council of Europe. However, the Government
were doing their best to improve conditions of detention in Russia.
They had adopted a number of task programmes aimed at the construction
of new pre-trial detention facilities, the re-construction of the existing
ones and the elimination of tuberculosis and other infectious diseases
in prisons. The implementation of these programmes would allow for a
two-fold increase of space for prisoners and for the improvement of
sanitary conditions in pre-trial detention facilities. 95. The Court recal ls that, Article 3 of
the Convention enshrines one of the most fundamental values of democratic
society. It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim's
behaviour (see, for example, Labita
v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). The Court further recalls that, according to its case-law,
ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3. The assessment of this minimum is relative;
it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim (see, among other authorities,
the Ireland v. the United Kingdom judgment of 18 January 1978, Series
A no. 25, p. 65, § 162). The Court has considered treatment to be “inhuman” because,
inter alia, is was premeditated,
was applied for hours at a stretch and caused either actual bodily injury
or intense physical and mental suffering. It has deemed treatment to
be “degrading” because it was such as to arouse in the victims feeling
of fear, anguish and inferiority capable of humiliating and debasing
them (see, for example, Kudla
v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering
whether a particular form of treatment is “degrading” within the meaning
of Article 3, the Court will have regard to whether its object is to
humiliate and debase the person concerned and whether, as far as the
consequences are concerned, it adversely affected his or her personality
in a manner incompatible with Article 3 (see, for example, the Raninen
v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions, 1997-VIII,
pp. 2821-22, § 55). However, the
absence of any such purpose cannot conclusively rule out a finding of
a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III). The suffering
and humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty may often
involve such an element. Yet it cannot be said that detention on remand
in itself raises an issue under Article 3 of the Convention. Nor can
that Article be interpreted as laying down a general obligation to release
a detainee on health grounds or to place him in a civil hospital to
enable him to obtain specific medical treatment. Nevertheless, under this provision the State must ensure
that a person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and
that, given the practical demands of imprisonment, his health and well-being
are adequately secured (see Kudla
v. Poland cited above, §§ 92-94). When assessing conditions of detention, account has
to be taken of the cumulative effects of those conditions, as well as
the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 96. In the present case, the Court notes
that the applicant was held in the Magadan detention facility IZ-47/1
from 29 June 1995 to 20 October 1999, and from 9 December 1999 to 26
June 2000. It recalls that, according to the generally
recognised principles of international law, the Convention is binding
on the Contracting States only in respect of facts occurring after its
entry into force. The Convention entered into force in respect of Russia
on 5 May 1998. However, in assessing the effect on the applicant
of his conditions of detention, which were generally the same throughout
his period of detention, both on remand and following his conviction,
the Court may also have regard to the overall period during which he
was detained, including the period prior to 5 May 1998. 97. The Court notes from the outset that
the cell in which the applicant was detained measured between 17 m²
(according to the applicant) and 20.8 m² (according to the
Government). It was equipped with bunk-beds and was designed for 8 inmates.
It may be questioned whether such accommodation could be regarded as
attaining acceptable standards. In this connection the Court recalls
that the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment of Punishment (“the CPT”) has set 7 m² per
prisoner as an approximate, desirable guideline for a detention cell
(see the 2nd General Report - CPT/Inf (92) 3, § 43), i.e.
56 m² for 8 inmates. Despite the fact that the cell was designed for 8 inmates,
according to the applicant's submissions to the Court the usual number
of inmates in his cell throughout his detention was between 18 and 24
persons. In his application for release from custody of 27 December
1996, the applicant stated that there were 21 inmates in his 8-bed cell.
In a similar application of 8 June 1999, he referred to 18
inmates (see paragraphs 43 and 73 above). The Court notes that the Government, for their part,
acknowledged that, due to the general overcrowding of the detention
facility, each bed in the cells was used by 2 or 3 inmates. Meanwhile,
they appear to disagree with the applicant as to the number of inmates.
In their submission there were 11 or more inmates in the applicant's
cell at any given time and that normally the number of inmates was 14.
However, the Government did not submit any evidence to substantiate
their contention. According to the applicant, it was only in March-April
2000 that the number of inmates was reduced to 11. The Court does not find it necessary to resolve the
disagreement between the Government and the applicant on this point.
The figures submitted suggest that that any given time there was 0.9-1,9
m² of space per inmate in the applicant's cell.
Thus, in the Court's view, the cell was continuously, severely
overcrowded. This state of affairs
in itself raises an issue under Article 3 of the Convention. Moreover, on account of the acute overcrowding, the
inmates in the applicant's cell had to sleep taking turns, on the basis
of eight-hour shifts of sleep per prisoner. It appears from his request
for release from custody on 16 June 1999, that at that time he was sharing
his bed with two other inmates (see paragraph 74 above). Sleeping conditions
were further aggravated by the constant lighting in the cell, as well
as the general commotion and noise from the large number of inmates.
The resulting deprivation of sleep must have constituted a heavy physical
and psychological burden on the applicant. The Court further observes the absence of adequate ventilation
in the applicant's cell which held an excessive number of inmates and
who apparently were permitted to smoke in the cell. Although the applicant
was allowed outdoor activity for one or two hours a day, the rest of
the time he was confined to his cell, with a very limited space for
himself and a stuffy atmosphere. 98. The Court next notes that the applicant's
cell was infested with pests and that during his detention no anti-infestation
treatment was effected in his cell. The Government conceded that infestation
of detention facilities with insects was a problem, and referred to
the 1989 ministerial guideline obliging detention facilities to take
disinfection measures. However, it does not appear that this was done
in the applicant's cell. Throughout his detention the applicant contracted various
skin diseases and fungal infections, in particular during the years
1996, 1997 and 1999, necessitating recesses in the trial. While it is
true that the applicant received treatment for these diseases, their
recurrence suggests that the very poor conditions in the cell facilitating
their propagation remained unchanged. The Court also notes with grave concern that the applicant
was detained on occasions with persons suffering from syphilis and tuberculosis,
although the Government stressed that contagion was prevented. 99. An additional aspect of the crammed and
insanitary conditions described above was the toilet facilities. A partition
measuring 1,1 meters in height separated the lavatory pan in the corner
of the cell from a wash stand next to it, but not from the living area.
There was no screen at the entrance to the toilet. The applicant had
thus to use the toilet in the presence of other inmates and be present
while the toilet was being used by his cellmates. The photographs provided
by the Government show a filthy, dilapidated cell and toilet area, with
no real privacy. Whilst the Court notes with satisfaction the major improvements
that have apparently been made to the area of the Magadan detention
facility where the applicant's cell was located (as shown in the video
recording which they submitted to the Court), this does not detract
from the wholly unacceptable conditions which the applicant clearly
had to endure at the material time. 100. The applicant's conditions of detention
were also a matter of concern for the trial court examining his case.
In April and June 1999 it requested medical expert opinions on the effect
of the conditions of detention on his mental and physical health after
nearly 4 years of detention in order to determine whether he was unfit
to take part in the proceedings and whether he should be hospitalised
(see paragraphs 71 and 76 above). Even though the experts answered both
questions in the negative, the Court notes their conclusions of July
1999, listing the various medical conditions from which the applicant
suffered, i.e. neurocirculatory dystonia, astheno-neurotic syndrome,
chronic gastroduodenitis, a fungal infection on his feet, hands and
groin and mycosis (see paragraph 30 above). 101. The Court accepts that in the present
case there is no indication that there was a positive intention of humiliating
or debasing the applicant. However, although the question whether the
purpose of the treatment was to humiliate or debase the victim is a
factor to be taken into account, the absence of any such purpose cannot
exclude a finding of violation of Article 3 (see Peers
v. Greece cited above). It considers that the conditions of detention,
which the applicant had to endure for approximately 4 years and 10 months,
must have caused him considerable mental suffering, diminishing his
human dignity and arousing in him such feelings as to cause humiliation
and debasement. 102. In the light of the above, the Court
finds the applicant's conditions of detention, in particular the severely
overcrowded and insanitary environment and its detrimental effect on
the applicant's health and well-being, combined with the length of the
period during which the applicant was detained in such conditions, amounted
to degrading treatment. 103. Accordingly, there has been a violation
of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION 104. The applicant complained that his lengthy
pre-trial detention violated Article 5 § 3 of the Convention,
which provides as follows: “Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.” A. The Government's preliminary objection 105. The Government argued that the applicant's
complaint should be examined in the light of the Russian reservation.
It was submitted that the reservation applied both to the period of
the applicant's detention during the preliminary investigation and the
court proceedings. They referred to the text of the reservation and
the contents of the Articles of the Code of Criminal Procedure cited
therein. In particular, Articles 11, 89, 92 and 101 of the Code (see
paragraph 89 above) conferred a power on the courts to apply preventive
custody measures at the trial stage up until the delivery of a judgment. 106. The applicant submitted that the Russian
reservation was not applicable in the present case as the reservation
did not concern the length of detention on remand. It was contended
that the purpose of the reservation was to preserve the right of the
prosecutor to order detention on remand and to grant extensions of such
detention when necessary. 107. The Court observes that the reservation
is framed to exclude from the scope of Article 5 § 3 of the Convention
the temporary application of specific provisions of the Code of Criminal
Procedure, mentioned in the text of the reservation, concerning the
procedure for the arrest, holding in custody and detention of persons
suspected of having committed a criminal offence. The provisions lay
down the conditions and modalities for the application of preventive
measures, including placement in custody, and list the authorities competent
to take the respective decisions. The Court notes that the reservation refers to Article
97 of the Code of Criminal Procedure under which a person can be detained
in custody for up to 18 months during the investigation of criminal
offences by an order of the competent prosecutor. Notwithstanding the reference to the time-limits of
detention during the investigative stage, the Court observes that the
reservation is concerned with the procedure for applying preventive
custody measures, whereas the applicant's
complaint relates to the length of his detention on remand and not its
lawfulness. 108. The Court therefore finds that the reservation
in question does not apply in the present case. B. Merits of the complaint 1. Period to be taken into consideration 109. It was undisputed that the period to be considered
began on 29 June 1995 when the applicant was placed in detention
on remand. As regards the end of the period concerned, the applicant
submitted that the relevant date was 31 March 2000, when the Magadan
City Court issued its second judgment in the case. The Government contended
that the period ended on 3 August 1999 with the delivery of the first
judgment of the City Court. They also maintained that the Court's examination
of the length of the applicant's detention on remand should be limited
to the period from 5 May 1998, the date on which the Convention entered
into force in respect of Russia, until 3 August 1999. 110. The Court first recalls that, in determining
the length of detention pending trial under Article 5 § 3 of the Convention,
the period to be taken into consideration begins on the day the accused
is taken into custody and ends on the day when the charge is determined,
even if only by a court of first instance (see, among other authorities,
the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p.
23, § 9, and Labita v. Italy
cited above, § 147). Thus, in the present case the applicant's detention
on remand began on 29 June 1995, when he was arrested, and ended on
3 August 1999, when he was convicted and sentenced by the Magadan
City Court. The further remand on outstanding charges did not alter
the fact that, as of 3 August 1999, the applicant was serving a sentence
after his conviction by a competent court, within the meaning of Article
5 § 1 (a) of the Convention. The total period of the applicant's detention of remand
amounted thus to four years, one month and four days. 111. As the period before 5 May 1998 lies outside
its jurisdiction ratione temporis,
the Court can only consider the period of one year, two months and twenty-nine
days, which elapsed between that date and the judgment of the Magadan
City Court of 3 August 1999. However, it must take into account the
fact that by 5 May 1998 the applicant, having been placed in detention
on 29 June 1995, had already been in custody for two years, ten months
and six days (see, for example, mutatis
mutandis, the Mansur v. Turkey judgment of 8 June 1995, Series A,
no. 319-B, p. 49, § 51). 2. Reasonableness of the length of detention (a) The parties' submissions 112. The applicant maintained that it was
not necessary to take him into custody and to keep him in detention
for an extended period of time as there was no proof that he was trying
to obstruct the establishment of the truth in the case. The reasons
given by the authorities to justify his detention were not relevant
or sufficient. He also submitted that his case was not particularly
complex, as established by the Magadan Regional Court on 15 March 1999.
Three of the nine volumes of the case-file were made up entirely of
his complaints to the various authorities. The investigation involved
the questioning of 29 witnesses and there were two civil plaintiffs
in the case. Finally, the applicant argued that the proceedings were
not conducted with due diligence by the authorities. His lengthy detention
was occasioned by the poor quality of the investigation, its unwarranted
attempts to increase the number of counts in the indictment and a lack
of proper control over its activities by the supervising bodies. In
this respect, he referred to the findings of the Magadan City Court
on 3 August 1999 (paragraph 80 above). 113. The Government pointed out that the
applicant was arrested on the ground that he had obstructed the investigation
of the truth. They further regarded the period of the applicant's pre-trial
detention as reasonable in view of the complexity of the case, its considerable
size (9 volumes) and the large number of witnesses and victims involved. (b) The Court's assessment (i) Principles established by the Court's case-law 114. The Court recalls that the question
of whether or not a period of detention is reasonable cannot be assessed
in the abstract. Whether it is reasonable for an accused to remain in
detention must be examined in each case according to its special features.
Continued detention can be justified in a given case only if there are
specific indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the Convention
(see, among other authorities, Kudla v. Poland cited above,
§ 110). It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must, paying due regard to the principle of the presumption of
innocence, examine all the facts arguing for or against the existence
of the above-mentioned requirement of public interest justifying a departure
from the rule in Article 5, and must set them out in their decisions
on the applications for release. It is essentially on the basis of the
reasons given in these decisions, and any well-documented facts stated
by the applicant in his appeals, that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3 (see, for
example, Labita v. Italy cited
above, § 152). The persistence of a reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after
a certain lapse of time it no longer suffices. The Court must then establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that the national
authorities displayed “special diligence” in the conduct of the proceedings.
The complexity and special characteristics of the investigation are
factors to be considered in this respect (see, for example, the Scott
v. Spain judgment of 18 December 1996, Reports
1996‑VI, pp. 2399-2400, § 74, and I.A. v. France judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102). (ii) Application of the above principles to the present case (α) Grounds for detention 115. During the period covered by the Court's
jurisdiction ratione temporis
the Magadan City Court, in refusing to release the applicant, relied on the gravity of the charges against
him and the danger of his obstructing the establishment of the truth
while at liberty (see paragraph 69 above). The Court observes that similar
grounds had been cited by the City Court
earlier - on 27 December 1996 and 8 August 1997 - to justify
the applicant's continued detention (see paragraphs 43 and 46 above). It further notes that the principal reason for the decision
to place the applicant in detention on remand on 29 June 1995 was that
he had obstructed the investigation of the case by refusing to turn
over certain bank documents necessary for the investigation, he had
brought pressure to bear on witnesses and had allegedly tampered with
the evidence. The decision also had regard to the gravity of the charges. 116. The Court recalls that the existence
of a strong suspicion of the involvement of a person in serious offences,
while constituting a relevant factor, cannot alone justify a long period
of pre-trial detention (see, for example, the Scott v. Spain judgment
cited above, p. 2401, § 78). As regards the other ground relied on by
the Magadan City Court in prolonging the applicant's detention, namely
the danger of obstructing the examination of the case, the Court notes
that, unlike the order of the investigator of 29 June 1995, the
City Court did not mention any factual circumstances underpinning its
conclusions, which were identical both in 1996, 1997 and 1999. There
is no reference in its rulings to any factor capable of showing that
the risk relied on actually persisted during the relevant period. 117. The Court accepts that the interference
with the investigation, along with the suspicion that the applicant
had committed the offences with which he was charged, could initially
suffice to warrant the applicant's detention. However, as the proceedings
progressed and the collection of the evidence became complete that ground
inevitably became less relevant. 118. In sum, the Court finds that the reasons
relied on by the authorities to justify the applicant's detention, although
relevant and sufficient initially, lost this character as time passed.
(β) Conduct of the proceedings 119. As regards the duration of the criminal
investigation, the Court notes the findings of the domestic courts that
the case was not particularly complex and that the investigation of
the case had been of poor quality contributing to a delay in the proceedings
(see paragraphs 69 and 80 above). The Court finds no reason to come
to a different conclusion. It also observes that, according to the domestic
courts, the investigators had unjustifiably attempted to increase the
number of counts in the indictment (see paragraph 80 above) - a reproach
which is borne out by the fact that only one of the nine charges against
the applicant was found to be substantiated in the judgment of the Magadan
City Court on 3 August 1999. 120. As regards the subsequent judicial proceedings,
the Court observes that there were significant delays in the proceedings
before the Magadan City Court. The trial, which had began on 11 November
1996, was adjourned on 7 May 1997 due to the removal from office of
the presiding judge. It did not resume until 15 April 1999, although
certain procedural steps were taken in July-August 1997 (the appointment
of a new judge and scheduling of a hearing), May and July 1998 (the
transfer of the case to another court), November 1998 (the scheduling
of a hearing), January and March 1998 (decisions on the need for further
investigation). While it is true that the hearing scheduled for 8 August
1997 had to be postponed on account of the absence of the applicant's
lawyer and the applicant objected to the transfer of his case to another
court - a move destined to expedite
the proceedings - the Court
finds that the applicant did not substantially contribute to the length
of the proceedings between the two trial periods, where there was no
progress in the case. It is thus apparent that the protracted proceedings
are attributable neither to the complexity of the case nor the conduct
of the applicant. Having regard
to the characteristics of the
investigation and the substantial delays in the court proceedings, the
Court considers that the authorities did not act with all due expedition. (γ) Conclusion 121. Against the above background, the Court
finds that the period spent by the applicant in detention pending trial
exceeded a “reasonable time”. There has thus been a violation of Article
5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION 122. The applicant complained that the criminal
charges against him were not determined within a reasonable time, as
required by Article 6 § 1 of the Convention, the relevant part of which
reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ...
hearing within a reasonable time by [a] tribunal established by law.” A. Period to be taken into consideration 123. The applicant submitted that the period
to be taken into account began on 8 February 1995, with the institution
of the criminal proceedings against him, and ended on 31 March 2000,
when the Magadan City Court delivered its second judgment in the case. The Government contended that the period to be considered
lasted from the transmission of the applicant's case to the Magadan
City Court on 6 February 1996 until the pronouncement of its first
judgment on 3 August 1999. 124. The Court recalls that the period to
be taken into consideration in determining the length of criminal proceedings
begins with the day on which a person is “charged” within the autonomous
and substantive meaning to be given to that term (see, among other authorities,
the Corigliano v. Italy judgment of 10 December 1982, Series A no. 57,
p. 13, § 34, and the Imbriosca v. Switzerland judgment of 24 November
1993, Series A no. 275, p. 13, § 36). It ends with the day on which
a charge is finally determined or the proceedings are discontinued. The period under consideration in the present case thus
began on 8 February 1995, when the applicant became a suspect on
charges of misappropriation. As regards the end of the period, the Court
notes that, following the decision to discontinue the remaining charges
on 29 September 1999, after the City Court judgment of 3 August 1999,
a new charge was brought against the applicant on 30 September
1999 on the basis of the same set of facts. It observes that the new
charge was part of the original criminal case no. 48529, which had been
initiated on 8 September 1995. In these circumstances and
taking account of the timing of the new charge, the Court finds that
the period to be considered ended on 31 March 2000, when the
City Court delivered its judgment determining the final charge. The period under consideration, i.e. from 8 February
1995 until 31 March 2000, amounted thus to a total of 5 years,
1 month and 23 days for, in effect, one level of jurisdiction,
despite numerous ancillary proceedings. While its jurisdiction ratione temporis only covers the period
after the entry into force of the Convention with respect to Russia
on 5 May 1998, the Court may take into account the state of the
proceedings existing on that date (see, among other authorities, mutatis mutandis, the Yağci and Sargin v. Turkey judgment of
8 June 1995, Series A no. 319-A, p. 16, § 40). B. Reasonableness of the length of the proceedings
125. The Court recalls that the reasonableness
of the length of the proceedings is to be assessed in the light of the
particular circumstances of the case, regard being had to the criteria
laid down in the Court's case-law, in particular the complexity of the
case, the applicant's conduct and the conduct of the competent authorities.
On the latter point, what is at stake for the applicant has also to
be taken into consideration (see, among many other authorities, Kudla
v. Poland cited above, § 124). 1. The parties' submissions 126. As to the complexity of the case, the
applicant referred to the finding of the Magadan Regional Court on 15
March 1999 that the case was not particularly complex and that this
could not justify the delays which had occurred. As regards his conduct, the applicant submitted that
his complaints were aimed at accelerating the proceedings. Moreover,
his active co-operation with the judiciary is not required under Article
6 of the Convention, nor can his attempt to pursue legal remedies be
held against him. As to the conduct of the authorities, the applicant
referred to the poor quality of the preliminary investigation and the
investigative shortcomings as established by the Magadan City Court
on 3 August 1999. In addition, the City Court itself breached domestic
procedural law by failing to comply with the time-limits for the start
of the trial stipulated in Articles 223-1 and 239 of the Code of Criminal
Procedure. It was pointed out that at the trial the court questioned
only nine witnesses. The applicant also referred to the removal of the
judge from his case, which had nothing to do with him, and to the transfer
of his case to the Khasynskiy District Court which proved ineffective
in accelerating the case. 127. The Government acknowledged that the
examination of the applicant's case lasted a long time, but submitted
that the period was not unreasonable. It was maintained that the lengthy
examination of the applicant's case was caused by its complexity and
volume, as well as the need for its thorough and comprehensive investigation.
Furthermore, the applicant contributed to the length
of the proceedings by filing multiple applications, including repeated
requests on motions which had been previously rejected. The Government
referred in this respect to the findings of the Magadan City Court of
15 July 1999 and 22 July 1999 where it was considered that the applicant's
numerous requests filed during the trial amounted to a deliberate attempt
to delay the proceedings. The applicant's petitions for a transfer of
his case to another court between hearings also caused delay. It was
pointed out that 30 % of the applicant's case-file was made up of his
complaints and motions. The Government also pointed out that the period of the
applicant's custody was subsumed by the term of his sentence. Therefore,
the length of the applicant's detention on remand had no impact on the
overall period of his confinement. Finally, the Government stated that the authorities
demonstrated a humane attitude towards the applicant by way of an amnesty,
which released him earlier from his sentence, even though he had not
compensated the bank and its many customers for the damage he had caused. 2. The Court's assessment (a) Complexity of the case 128. The Court notes that the proceedings in issue,
in which the applicant was the only defendant, concerned financial offences
with considerable evidence, involving the questioning of a number witnesses.
It observes, however, that from 7 May 1997, when the trial was adjourned,
until 15 April 1999, when it resumed, no investigative measures were
undertaken. The Court observes the finding of the domestic court
that the case was not so complex as to justify the delays in the proceedings
(see paragraph 69 above). It was thus not the complexity of the case or the requirements
of the investigation which accounted for the length of the proceedings. (b) Conduct of the applicant 129. The Court notes that throughout the
domestic court proceedings the applicant filed numerous requests in
connection with his case, both during his trial and between hearings.
It recalls that Article 6 does not require a person charged with a criminal
offence to co-operate actively with the judicial authorities (see, for
example, the Dobbertin v. France judgment of 25 February 1993, Series
A no. 256-D, p. 117, § 43). It observes that the applicant's applications lodged during the trial as of
15 April 1999 were found by the trial court to have been obstructive
to the examination of his case. However,
there is no indication that during other trial periods, i.e. from 11
November 1996 to 7 May 1997, and from 20 December 1999 to 31 March 2000,
the applicant's behaviour could be said to have been in any way dilatory.
As regards the requests lodged by the applicant between
hearings, the Court notes that they related mainly to the prolonged
failure of the trial court to examine his case. The Court cannot find
that these requests contributed to slowing down the proceedings, in
particular as they remained largely without effect. While it is true
that in order to expedite the proceedings the applicant's case was transferred
to another court, the applicant cannot be criticised for objecting to
it after the transfer had resulted in no progress in his case. The Court also notes that once, on 8 August 1997, a
hearing had to be postponed as the applicant's lawyer had failed to
appear. 130. The Court considers that, whilst the
applicant can be held responsible for certain delays, his conduct did
not contribute substantially to the length of the proceedings. (c) Conduct of the national authorities 131. As already mentioned above, there were significant
delays in the domestic proceedings, which could not be explained by
the complexity of the case or the conduct of the applicant. In particular,
the case lay practically dormant before the trial court for nearly two
years, i.e. from 7 May 1997 to 15 April 1999.
132. The Court observes that throughout the
proceedings the applicant was kept in custody - a fact which required
particular diligence on the part of the courts dealing with the case
to administer justice expeditiously. 133. The Court further notes that, following
the judgment of the Magadan City Court on 3 August 1999 and the decision
to discontinue the remaining charges on 29 September 1999, the authorities
brought a new charge against the applicant on the basis of the same
set of facts, thereby contributing even further to the length of the
proceedings, which had already lasted for over four and a half years
at the court of first instance. 134. It considers that the authorities failed
in their duty of special diligence, particularly after the entry into
force of the Convention on 5 May 1998. 3. Conclusion 135. Having regard to the above background,
the Court considers that the length of the proceedings did not satisfy
the “reasonable time” requirement. Accordingly, there has been a breach
of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 136. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the
High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the
injured party.” A. Pecuniary damage 137. The applicant claimed damages in respect
of the following items: (1) 130,599 US dollars (“USD”) for loss of
salary as the president of the North East Commercial Bank, during the
period of his detention from July 1995 until 20 April 2000; (2) USD 203,000 for loss of salary from another
company which dismissed him because of his arrest; (3) USD 500,000 for the loss of his company's
property following his arrest; (4) USD 8,600 for the loss of his automobile; (5) USD 11,734,376 for the loss of profits
on shares which he could not sell at their market value in 1995; (6) USD 436,226 for the loss of his majority
shares in a factory which was declared bankrupt in 1997. His overall claim for pecuniary damages totalled USD
13,012,702. 138. The Government contested these claims. 139. The Court recalls that it will award
monetary compensation under Article 41 only where it is satisfied that
the loss or damage complained of was actually caused by the violation
it has found. As regards the claim under item (1), the Court notes that the applicant was convicted and that
the period of his pre-trial detention was deducted in its entirety from
the sentence. It considers therefore that the claim cannot be entertained. As regards the remainder of the claims, the Court considers
that no causal connection has been established between the damage alleged
and the violations it has found. The Court therefore rejects the applicant's claim under
this head. B. Non-pecuniary damage 140. The applicant claimed 9,636,000 French
francs for non-pecuniary damage. 141. The Government submitted that the claim
was excessive and that the finding of a violation would constitute sufficient
satisfaction. 142. The Court considers that the length
of the applicant's detention on remand in such prison conditions, as
well as the length of the criminal proceedings, must have caused him
feelings of frustration, uncertainty and anxiety which cannot be compensated
solely by the finding of a violation. 143. Deciding on an equitable basis, the
Court awards the applicant a global sum of 5,000 euros (“EUR”) in respect
of non-pecuniary damage. C. Costs and expenses 144. The applicant submitted that his expenses
for the services rendered by his lawyer in the domestic proceedings
amounted approximately to 40,000 USD. 145. The Government considered this claim
to be unsubstantiated and excessive, given the level of lawyers' fees
at the relevant time in the remote Magadan region. They further questioned
the authenticity of certain documents supplied by the applicant. It
was also argued that the expenses borne by the applicant in the domestic
proceedings should not be reimbursed as the applicant was found guilty
and sentenced to a term of imprisonment. 146. The Court recalls that in order for
costs and expenses to be included in an award under Article 41, it must
be established that that they were actually and necessarily incurred
in order to prevent or obtain redress for the matter found to constitute
a violation of the Convention and were reasonable as to quantum (see,
for example, Nielsen and Johnson v. Norway [GC], no.
23118/93, § 43, ECHR 1999-VIII). It is apparent from the material submitted
that the applicant incurred legal costs and expenses in connection with
his attempts to secure his release on bail. However, he only provided
partial documentary substantiation of the sum claimed. Moreover, the
costs incurred did not exclusively relate to the breaches of Articles 3, 5 § 3
and 6 § 1 of the Convention. Making an assessment on an equitable basis, the Court
considers it reasonable to award the applicant the sum of 3,000 EUR
under this head. D. Default interest 147. The Court considers that the default
interest should be fixed at an annual rate equal to the marginal lending
rate of the European Central Bank plus three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds
that there has been a violation of Article 3 of the Convention; 2. Holds
that there has been a violation of Article 5 § 3 of the Convention; 3. Holds
that there has been a violation of Article 6 § 1 of the Convention; 4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement; (i) 5,000 EUR (five thousand euros) in respect
of non-pecuniary damage; (ii) 3,000 EUR (three thousand euros) in
respect of costs and expenses; (iii) any tax that may be chargeable on the
above amounts; (b) that simple interest at an annual rate
equal to the marginal lending rate of the European Central Bank plus
three percentage points shall be payable from the expiry of the above-mentioned
three months until settlement; 5. Dismisses the remainder of the applicant's
claim for just satisfaction. Done in English, and notified in writing on 15 July
2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. Dollé
J.-P. Costa In accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the separate concurring opinion
of Mr Kovler is annexed to this judgment. JPC SEPARATE CONCURRING OPINION OF JUDGE KOVLER (Translation) In general I share my colleagues' opinion in this case.
However, having regard to the legal importance of the Court's judgment,
I consider it necessary to make certain remarks. 1. The reservation made by Russia in respect
of Article 5 §§ 3 and 4 of the Convention concerning the application
of certain provisions of the RSFSR Code of Criminal Procedure of 27
October 1960 (“CCP”), with the subsequent amendments to the procedure
for the detention on remand of suspects, extends also to Article 97
on “Custodial periods” of the CCP,
mentioned in the reservation along with other provisions of the
CCP. I find it difficult, therefore, to justify the Court's conclusion
in paragraph 108 of the judgment that the reservation does not
cover part of the applicant's pre-trial detention. In my view, it would have been more appropriate for
the Court to hold that the reservation at least extends to the period
spent by the applicant in custody pending the criminal investigation.
Nevertheless, it should be borne in mind that a broad construction of
the text of the reservation as it applies to Article 97 of the CCP could
result in certain findings that extensions of detention on remand beyond
the time-limits set out in Sections 4-7 of Article 97 of the CCP are
lawful: in cases where the defendant and his or her advocate cannot
examine the case-file before the expiry of the maximum custody period,
where the defendant and his or her advocate request further investigations
or when a court remits a case for further investigations when the custody
period has expired. In other words, Russia's reservation under Article 5
§§ 3 and 4 applies not only to the procedure for remand in custody (which,
by the way, is being drastically modified as of 1 July 2002 when relevant
provisions of the new CCP come into force), but also to other pre-trial
custody periods. In this connection, it is necessary to determine whether
“detention on remand” includes the time spent in custody after the criminal
case has been transferred to the trial court. 2. Russian procedural law distinguishes between
two types of detention on remand: preliminary detention pending the
investigation («çà ñëåäñòâèåì»)
and preliminary detention pending trial («çà
ñóäîì»). This difference is reflected in the law of 13 June 2001
which limited to six months the maximum length of court proceedings
in criminal cases. However, in paragraph 110 of its judgment, the Court,
with reference to its case-law, considered that detention on remand
encompasses the whole pre-trial detention period, from the day when
the individual is taken into custody until the trial court's verdict.
After all, for a detainee locked up in an overcrowded prison cell, it
makes little difference whether his or her detention is considered to
be pending the investigation or pending the trial, or whether it was
effected before or after the Convention came into force in respect of
the respondent State. This difference could, however, be of importance
for the Court, if the Court were to accept that a State's margin of
appreciation is relevant to the determination of the reasonableness
of custody periods. The applicant was remanded in custody pending the investigation
from 29 June 1995 (the day when he was taken into custody) until
19 June 1996 (the day when the Regional Prosecutor's Office transferred
the case to the Magadan City Court), i.e. eleven months and twenty-two
days, which is less than the maximum period of eighteen months set out
in Section 2 of Article 97 of the CCP, after which a defendant
may be immediately released (Section 3 of Article 97 of CCP). This part
of the applicant's detention cannot be imputed to the respondent State
because it pre-dated the entry into force of the Convention in respect
of Russia (incompatible ratione temporis). The applicant's detention pending the court proceedings
lasted until 3 August 1999, when the Magadan City Court gave its
first judgment, i.e. three years one month and twenty-one days (as the
Court has established in paragraph 110 of its judgment, above). One
should not forget that the delay in passing verdict and, consequently,
the applicant's prolonged stay in custody, was partly attributable to
the applicant's challenges to judges and his requests that the proceedings
be conducted by a different court, as well as to the replacement of
advocates and their failure to appear, which facts the Court implicitly
accepts at paragraph 130 of its judgment. This delay totalled one year
and three months. It would not, of course, justify the procedural delays
caused by the courts themselves, but nonetheless creates a different
picture of the applicant's detention pending trial. Finally, the remittance of the case for further investigation
and the delivery by the Magadan City Court on 31 March 2000 of the second
verdict extended the custody period by another seven months, in accordance
with Section 7 of Article 97 of the CCP. However, in all, the applicant spent five years, one
month and twenty-three days in custody, four years, nine months and
two days of which were spent in Remand Centre No. 1 at Magadan. This
cannot be considered to be a reasonable custody period for the purposes
of Article 5 § 3 of the Convention, despite the circumstances I have
mentioned above. Pursuant to Section 8 of Article 97 of the CCP, the
applicant complained several times to the courts about the lawfulness
and validity of his detention. He thereby exhausted, as required by
Article 35 § 1 of the Convention, all the domestic remedies available
to him in this respect. 3. As regards the issues under Article 6
§ 1 of the Convention (a fair and public hearing within a reasonable
time), the Court has, unfortunately, in my view disregarded the fact
that the applicant did not make use of his right to lodge an appeal
against the verdict of 3 August 1999; thus leaving open a question of
exhaustion of domestic remedies. It is true, however, that the applicant's
arguments are reinforced by the fact that this verdict was not final,
given the further investigation and new verdict given on 31 March 2000. 4. Having regard to the above considerations,
I consider it appropriate to concur with the opinion of my colleagues
as to the violations of Articles 3, 5 § 3 and 6 § 1 of the Convention,
but believe that the award of just satisfaction in paragraph 143 of
the judgment should have been separately assessed in respect of the
different violations found. |
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