FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46793/06
by Vladimir Mikhaylovich BULDASHEV
against Russia
The European Court of Human Rights (First Section), sitting on 10 September 2009 as a Chamber composed of:
Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 6 October 2006,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vladimir Mikhaylovich Buldashev, is a Russian national who was born in 1952 and is detained in Chelyabinsk. He is represented before the Court by Ms O. Ogur, a lawyer practising in Chelyabinsk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The applicant’s arrest and detention pending investigation
On 18 July 2006 the police detained the applicant on suspicion of two counts of murder. They allegedly searched his flat and removed some documents.
On 20 July 2006 the Tsentralniy District Court of Chelyabinsk authorised the applicant’s detention.
On 15 September 2006 the District Court further extended the applicant’s detention until 14 December 2006. Referring to his health, unsatisfactory conditions of detention, lack of a criminal record and his minor child, the applicant argued that the court might use any other preventive measure, including bail, rather than detention. Dismissing the applicant’s arguments, the court noted as follows:
“[The applicant] is charged with serious offences and his name has been on the federal wanted persons’ list for over a year. It follows that, if released, [the applicant] might abscond or re-offend ... The defence has not furnished any medical documentation to substantiate the allegations that [the applicant] is unfit for detention. The court has also taken into account the material concerning [the applicant’s] character when deciding on the matter.”
On 26 September 2006 the Chelyabinsk Regional Court upheld the decision of 15 September 2006 on appeal.
On 12 December 2006 the District Court extended the applicant’s detention until 14 March 2007. The applicant asked the court to release him on bail. He noted that his detention had been unreasonably long; that the prosecutor’s office had been procrastinating with the investigation; that he had a permanent residence, a job and family ties. The court reasoned as follows:
“[The applicant] is charged with serious offences... [The applicant] absconded a long time ago and his name has been put on the local and federal wanted persons’ list. In such circumstances the court considers that, if released, [the applicant] might abscond.”
It appears that the applicant remained in custody pending investigation and trial.
B. Proceedings concerning the lawfulness of the alleged search
On an unspecified date the applicant’s lawyer lodged a complaint with the prosecutor’s office alleging that the investigator had conducted a search of his flat and removed certain documents in the absence of a relevant court order.
It appears that the prosecutor’s office carried out an inquiry in response to the complaint and dismissed the allegations as unsubstantiated on 5 October 2006. The prosecutor concluded that no search had been conducted at the applicant’s place of residence on 18 July 2006. The applicant did not appeal.
On an unspecified date the applicant lodged a complaint challenging the lawfulness of the investigator’s actions within the framework of his arrest.
On 2 November 2006 the District Court dismissed the applicant’s complaint as unsubstantiated. The applicant appealed.
On 12 December 2006 the Regional court upheld the decision of 2 November 2006 on appeal. Neither the applicant nor his lawyer attended the hearing.
C. Trial and ensuing proceedings
On 16 August 2007 the Chelyabinsk Regional Court opened the trial in respect of the applicant and two other defendants.
On 28 November 2007 the jury found the applicant guilty of two counts of murder, fraud and misappropriation of funds.
On 3 December 2007 the Chelyabinsk Regional Court sentenced the applicant to twenty-two years’ imprisonment. According to the applicant, both the judge and the prosecutor gave interviews to a local TV station in the courtroom after the verdict was pronounced.
On 25 September 2008 the Supreme Court of Russia upheld the verdict on appeal. The applicant’s lawyer was not present at the hearing.
On 11 March 2009 the Presidium of the Supreme Court of Russia quashed the judgment of 25 September 2008 by way of supervisory review and remitted the matter for fresh consideration owing to the appeal court’s failure to ensure the presence of the applicant’s lawyer at the hearing. The court further noted that the applicant should remain in custody until 11 June 2009. In this regard the court indicated as follows:
“... given that [the applicant] has been found guilty of a very serious offence and that he might abscond and interfere with the prompt consideration of his case by the appeal court ..., the Presidium of the Supreme Court of Russia considers it necessary that [he] remain in custody.”
It appears that the appeal proceedings are still pending.
D. Conditions of detention
On 19 July 2006 the applicant was placed in remand prison no. 74/1 in Chelyabinsk (cells nos. 102, 47, 49, 54, 95 and 60) where he has been detained ever since.
According to the applicant, all the cells in which he was held were overcrowded and the inmates had to take turns to sleep. In particular, he submitted the following information on the issue:
Period of detention
Cell no.
Surface area (in square metres)
Number of inmates
Number of beds
102
8.5
4-6
4
from 31 October 2006 to 25 January 2007
47
19.7
12-17
8
49
30
17-21
10
54
15.3
up to 12
6
from 25 January 2007 to 18 April 2008
95
8.5
up to 5
4
from 25 April 2008 to date
60
25.6
11
8
The radiators in the cells hardly worked. The walls and the ceiling were covered with mould. The cells had no ventilation. It was stiflingly hot in the summer and very cold and damp in the winter. Most of the windows were completely covered with metal sheets. The majority of the inmates smoked and the applicant, a non-smoker, was exposed to the others’ tobacco smoke. He was allowed a daily walk outside which did not exceed 40-50 minutes. There was no opportunity to do physical exercises.
The toilet offered no privacy and the person using it could potentially be seen by both the inmates and the guards watching the inmates through the peep-hole in the door.
The cells were lit with dim electric lights. There was no access to daylight in cell no. 95.
The cells were infested with cockroaches, bugs, ants and rats. Disinfection was not performed, nor was any detergent distributed. The meals provided often contained flies, bugs, cockroaches and rats’ feet. The food was of a very poor quality and not in compliance with the quality standards established by law. Fish and meat were rarely served. Eggs, milk or fruit drinks were never offered. The quality of the food improved only on days when inspections were held. The food products the inmates could buy in the prison shop were of a very low quality. The applicant submits that the above description also applies at present.
Hot water was not supplied. From April to October the inmates were only allowed to take cold showers. From 6 September to 29 November 2008 the applicant did not have a single opportunity to take a shower.
On several occasions HIV-infected inmates and inmates diagnosed with tuberculosis were placed in the cells where the applicant was detained.
On 25 January 2007 the applicant’s lawyer complained to the local prosecutor about the conditions of the applicant’s detention. On 21 February 2007 the prosecutor responded that the conditions of detention were in compliance with the applicable rules.
E. Alleged inhuman and degrading treatment in custody
According to the applicant, on several occasions he was subjected to humiliating and degrading treatment and beatings while in detention. In particular, he submitted as follows.
In December 2007 the applicant was beaten by one of the prison guards. The applicant’s request to see a doctor was refused.
On 2 March 2008 the applicant was woken up by the guards. They took him and one of his cellmates to the corridor where they were stripped naked and subjected to a body search in the presence of female guards.
On 29 May 2008, when the applicant was taken to the court to attend the trial, the SWAT unit beat the other inmates with wooden and rubber truncheons.
On 12 August 2008 the prison administration refused to dispatch the applicant’s complaint concerning the ill-treatment.
On 4 September 2008 one of the SWAT officers kicked the applicant twice in the rear and in the crotch during another search. Then the applicant was stripped naked and ordered to do numerous sit-ups.
COMPLAINTS
The applicant complained under Articles 3 of the Convention about appalling conditions of his detention and inhuman and degrading treatment he had been subjected to at the remand prison. He further alleged that he did not have an effective remedy in respect of the conditions of his detention pending the judicial proceedings.
The applicant complained under Article 5 § 3 of the Convention that his detention had been unreasonably long.
The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unreasonably long; that the tribunal which considered the criminal charge against him had not been impartial or independent, and that he had been convicted of crimes he had not committed. He further alleged that he had been unable to prepare for the preliminary hearing of the matter owing to the court’s belated notification of its date; that the presiding judge had been personally biased against him and presumed him guilty; that the court had failed to examine certain witnesses and read out their earlier statements; that he had received a copy of the minutes of the trial almost six months after the trial had been over; that his sentence was too severe; that the presiding judge and the prosecutor had given an interview to the local TV station after the trial had been over but the conviction had not been yet final.
The applicant complained under Article 6 § 3 (b) and (c) that on 12 December 2006 the Chelyabinsk Regional Court had considered his complaint against the investigator in his and his lawyer’s absence.
The applicant complained under Article 8 of the Convention that the search conducted at his place of residence had been unlawful.
THE LAW
1. The applicant complained under Article 3 of the Convention about the conditions of his detention and inhuman and degrading treatment he had been subjected to while in custody. He further submitted that he did not have an effective remedy in respect of the alleged violations. The complaints fall to be examined under Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
2. The applicant complained under Article 5 § 3 of the Convention about an excessive length of his pre-trial detention. The relevant part of Article 5 of the Convention reads 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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unreasonably long. The complaint falls to be examined under Article 6 of the Convention, which reads, in so far as relevant, as follows:
Article 6
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Furthermore, the Court considers that an issue arises under Article 13 of the Convention as to whether or not a remedy existed to which the applicant could turn in respect of the above grievance.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above issues and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
4. The Court has examined the remainder of the complaints lodged by the applicant under Articles 3, 6 and 8. However, having regard to all the material in its possession and, in so far as the complaints fall within its competence ratione materiae and ratione personae, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the conditions of his detention and the availability of an effective remedy in this respect, the ill-treatment he was subjected to and the availability of an effective remedy in this respect, the length of the applicant’s pre-trial detention, the length of the criminal proceedings against him and the availability of an effective remedy in this respect;
Declares the remainder of the application inadmissible.
André WampachChristos Rozakis Deputy Registrar President
Full & Egal Universal Law Academy