EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF KALASHNIKOV v. RUSSIA
(Application no. 47095/99)
JUDGMENT
(Strasbourg, 15.VI.2002)
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,
Mr W. Fuhrmann,
Mr L. Loucaides,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr A. Kovler, judges,
and Mrs S. Dolle, Section Registrar,
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
Mr P. Laptev, Representative of the Russian Federation before
the ECHR,
Mr Y. Berestnev,
Mr S. Volkovsky,
MR S. Razumov,
MR Y. Kalinin, Advisers;
MR K. Bahtiarov,
MR O. Ankudinov,
MR V. Vlasihin, Experts;
(b) for the applicant
Mrs K. Moskalenko, of the Moscow International Protection
Centre
Mr N. Sonkin, of the Moscow Regional Bar Counsel,
Mr V. Kalashnikov, 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 (Северо-Восточный Акционерный Банк).
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 (Магаданский
городской суд) 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 (СИЗО-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 (sq. m.) 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 sq. m. 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 (Магаданский областной суд) 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 (Верховный Суд Российской Федерации)
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 (Высшая квалификационная коллегия судей Российской
Федерации) - 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 (Конституционный Суд Российской Федерации) 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 (Хасынский районный суд) 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 220.1 and 220.2 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 selfgovernment 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 sq. m (according to the
applicant) and 20.8 sq. m (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 sq. m per prisoner as an approximate, desirable guideline
for a detention cell (see the 2nd General Report - CPT/Inf (92) 3,
§ 43), i.e. 56 sq. m 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 4paragraphs 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 sq. m 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, asthenoneurotic 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 wellbeing, 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
(alpha) 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.
(beta) 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.
(gamma) 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 Yagci
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.
Registrar
S.DOLLE
President
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
SD
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
pretrial 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 ("за следствием") and preliminary detention pending
trial ("за судом"). 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 pretrial 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
twentythree 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 |
