CASE OF SALMANOV v. RUSSIA

FIRST SECTION

CASE OF SALMANOV v. RUSSIA

(Application no. 3522/04)

JUDGMENT

STRASBOURG 

31 July 2008

FINAL

31/10/2008

This judgment may be subject to editorial revision.

In the case of Salmanov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 3 July 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 3522/04) 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, Mr Saipudi Zeindinovich Salmanov (“the applicant”), on 2 December 2003.

2. The applicant was represented by Mr S. Ibragimov, a lawyer practising in the town of Mytishchi in the Moscow Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.

3. On 19 January 2006 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning an alleged risk of HIV infection, the conditions of the applicant’s transport to and from, and confinement at, the courthouse, the excessive length of his detention on remand and that of the criminal proceedings against him. Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility. It also decided that the application should be given priority under Rule 41 of the Rules of Court.

4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and is serving a sentence of imprisonment in the Sverdlovsk Region.

A. The applicant’s arrest and detention

6. The applicant was arrested on 20 January 1998. He was charged with a number of criminal offences, including conspiracy to commit murder.

7. On 11 May 1998 the applicant was taken to remand centre no. 77/1, also known as “Matrosskaya Tishina”.

8. In July 1998 the deputy Prosecutor General extended his detention until 18 January 1999. On 2 October 1998 the Preobrazhenskiy District Court of Moscow upheld this extension order.

9. In September 2000 the criminal case against the applicant was listed for trial. On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged.

10. The City Court subsequently issued further extension orders on 3 July, 30 September, 18 December 2002, 24 March, 30 June and 30 September 2003, referring to the fact that the applicant and his co-defendants had been charged with particularly serious criminal offences. The Supreme Court of the Russian Federation rejected appeals against these remand orders, endorsing the City Court’s reasoning.

11. On 30 December 2003 the City Court extended the defendants’ detention on remand until 1 April 2004, noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice.

12. On 30 March 2004 the City Court extended the defendants’ detention on remand until 1 July 2004, indicating that:

“...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”.

13. On 1 July 2004 the City Court extended the defendants’ detention, reproducing verbatim the reasoning of its earlier decision.

14. On 22 July 2004 the Supreme Court upheld the decision of 30 March 2004 and endorsed the City Court’s reasoning.

B. Criminal proceedings against the applicant

1. Determination of the trial venue

15. On 19 July 1999 the Moscow city prosecutor approved the bill of indictment and the case was submitted for trial to the City Court. The applicant was charged with multiple counts including conspiracy to commit murder. Similar charges were brought against fifteen other co-defendants.

16. On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available.

17. On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility with the Russian Constitution of the Supreme Court’s interpretation of the jurisdictional rules. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court. She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger, classified as serious or particularly serious.

18. On 13 April 2000 the Constitutional Court held that the decision on the change of venue had been incompatible with the Russian Constitution.

19. In compliance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court. The Supreme Court decided on 6 September 2000 that the City Court was competent to try the case.

2. Trial

20. On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a panel consisting of a professional judge and two lay judges, but on that date the hearing was adjourned because the presiding judge was sitting in another case.

21. In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. Lay judges were replaced several times.

22. Numerous hearings were scheduled between 2001 and early 2003. All of them were adjourned on various grounds, mainly because the prosecutor, the interpreter and some of the defendants’ lawyers had defaulted, and also owing to the presiding judge’s involvement in other proceedings in May and October 2001, and then in May, September and October 2002.

23. It appears that consideration of the merits began in March 2003. The absence of several lawyers, including the applicant’s counsel, was one of the reasons for adjourning the hearings listed for 4 March and 29 April 2003.

24. The illness of the applicant’s counsel was one of the reasons for adjourning the hearings scheduled for 26 January and 2 February 2004. On 10 March 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on 16 March 2004, which was not done in respect of certain witnesses and victims. On a number of occasions between March and July 2004 the judge reiterated his request.

25. On 12 August 2004 the trial court closed the trial and started deliberations.

26. On 27 October 2004 the City Court found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to ten years’ imprisonment. On 10 November 2004 the judgment was pronounced in public.

27. The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the judgment.

C. Conditions of detention

28. According to the applicant, from 2 October 2004 to 5 June 2005 and from 11 June to 26 June 2005 he shared a cell with a Mr K. On an unspecified date, the latter tested HIV positive. He was informed so six months later and had another blood test, which was also positive. According to the applicant, on 11 June 2005 Mr K. told him that he had tested HIV positive.

29. It appears from a report of 20 March 2006, submitted by the Government, that HIV-positive detainees were not segregated from the other detainees in remand centre no. 77/1; the applicant “was informed of the rules for detention of HIV-positive detainees”, including a prohibition of such segregation.

D. Conditions of the applicant’s transport to and from, and confinement at, the courthouse

1. The applicant’s account

30. The applicant submitted the following description of the relevant circumstances of his transport and confinement.

Between 2001 and 2004 the applicant had been transported to the Moscow City Court and back to the remand centre no. 77/1 on no less than one hundred days (normally, three days per week). He had been taken out of his cell at 6 a.m. and placed alone in a cell measuring 70 by 70 centimetres, awaiting departure at 9 or 10 a.m. On the day of a court hearing he had not been given any food before departure; nor had he received any meal at the courthouse or in the remand centre upon his return. Since early 2004 the authorities had started to supply a dry ration for the day which he, however, could not consume because no hot water had been provided at the convoy premises in the City Court.

The applicant had been transported in overcrowded vans; the journey from the remand centre to the City Court had normally taken one to three hours.

At the City Court premises the applicant had been held together with several other detainees in a cell measuring 1.2 by 2 metres. After the hearing he had been taken back to that cell where he had waited until 6 to 8 p.m. without any food or drink or access to a toilet.

On the way back the prison van had never gone directly to remand centre no. 77/1, it made a detour to bring detainees to another remand centre where it sometimes stayed for four or five hours. Thus, the return journey had normally taken two to three hours. Upon arrival at facility no. 77/1, the applicant had had to wait for one more hour before being taken to his cell at about midnight.

2. The Government’s account

31. The Government contested the applicant’s description of his conditions of confinement and transport. According to them, the applicant was taken out of his cell at 6 a.m. and provided with hot breakfast. He was then kept at the assembly section which had eight cells measuring between 12.7 and 17.9 square metres. Each cell had a bench, sanitary facilities, artificial lighting and a window. The applicant remained there for about one hour and a half awaiting departure for the courthouse. He was given a dry ration consisting of two courses for the remainder of the day.

Between 2001 and 2003 the applicant was transported in vans GAZ-2207(3309) and ZIL-4331. The detainees’ section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees’ section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers.

Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. Given the security considerations, from December 2003 onwards the applicant and his co-defendants were carried by direct transfer between the remand centre and the courthouse.

At the City Court the applicant was kept at the convoy premises which had three compartments with seventeen cells each and a toilet, which detainees could access upon request. Each cell measured 1 m by 1.95 m by 3.1 m. Each cell had seating and was equipped with systems of ventilation, heating and artificial lighting. At the courthouse he was provided with hot water with which to consume the dry ration. He was also allowed to bring food purchased in the prison shop or received from his relatives.

3. Examination of the applicant’s complaints

32. In 2003 the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse.

33. It appears from the report of the Moscow Department of the Interior dated 16 December 2003, submitted by the Government, that the applicant was taken to court for criminal proceedings which “were dragging on”. Between July and October 2003 he was transported eight times in the prison van ZIL-4331 together with, at times, fifteen to twenty-seven other detainees; the direct transfer from the courthouse did not normally exceed thirty minutes and ended no later than 8 p.m., except on 30 September 2003. From December 2003 onwards the applicant and his co-defendants were taken by direct transfer on account of security considerations. Convoy premises at courthouses were not equipped for catering purposes and “the detainees ate their dry rations when they returned to the remand centre from the courthouse”.

34. By a letter of 17 December 2003 the Moscow Department of the Interior stated that the time taken for transportation had been “objectively justified”.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL INSTRUMENTS

A. Detention on remand

35. For a summary of the applicable national legislation relating to detention on remand, see the Court’s judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005).

A.  Catering arrangements for detainees

36. On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005.

37. On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration.

C. Transmissible diseases in prison

1. Russian legislation

38. Limitation of a citizen’s rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code).

39. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing propagation of the HIV infection; medical and other staff must not disclose information relating to the detainee’s HIV status (Rules 11 and 13).

40. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-infected prisoners.

2. International standards

41. The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows:

“31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries....

...[T]he act of depriving a person of his liberty always entails a duty of care...

The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned.

...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.

...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...”

42. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows:

“13. Medical confidentiality should be guaranteed and respected...

38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons.

39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40.

40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...”

43. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows:

“9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.”

44. Detention of HIV-infected persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison.

45. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons:

“27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners’ rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations...

28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner’s informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration....

32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

46. The applicant complained under Article 3 of the Convention about an alleged exposure to a risk of HIV infection, about the conditions in which he was conveyed between remand centre no. 77/1 in Moscow and the Moscow City Court, and the conditions of his confinement at the courthouse. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. Exposure to a risk of HIV infection

47. The applicant initially complained that he had been kept in a cell with an HIV-positive inmate. In his observations of 9 June 2006 he specified that he was challenging the delayed notification of Mr K’s HIV status. Until he had been so informed, the applicant was exposed or feared to be exposed to the risk of contamination because he shared his cell with Mr K. and was not advised of the dangers relating to the HIV and of the means of protection against it. The applicant submitted to the Court a written statement from his cellmate, Mr P., who had confirmed the applicant’s position.

48. The Government submitted that the applicant had not been held together with detainees suffering from HIV and had been informed about the rules for their detention. Under Russian law those persons were not segregated from other prisoners.

49. The Court observes that, according to the existing international standards (see paragraphs 41 - 45 above), segregation, isolation and restrictions on occupational and recreational activities are considered unnecessary in the case of HIV-infected persons in the community or when they are detained (see also Enhorn v. Sweden, no. 56529/00, § 55, ECHR 2005‑I). When detained, they should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other relevant grounds. Adequate health care should be afforded to HIV-infected detainees, with due regard to the obligation of confidentiality. National authorities should provide all detainees with counselling on risk behaviours and modes of HIV transmission.

50. The Court will examine the applicant’s complaint on the assumption that he did share a cell with an HIV-positive detainee. The Court need not determine the truthfulness of each and every allegation because his complaint is in any event inadmissible for the following reasons.

51. The Court reiterates that the protection of medical data, in particular the confidentiality of information about a person’s HIV status, is of fundamental importance to a person’s enjoyment of his or her right to respect for private life and that the domestic law must therefore afford appropriate safeguards to prevent any such disclosure which may run counter to the guarantees of Article 8 of the Convention (see Z v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I, § 95).

52. On the other hand, the Court recalls that Article 3 of the Convention imposes an obligation on the State to ensure that a person is detained in conditions which are compatible with respect for 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 Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).

53. In the present case, it has not been claimed that the applicant contracted HIV or that he had been unlawfully exposed to a real risk of infection, for instance, through sexual contacts or intravenous drug use. The mere fact that HIV-positive detainees use the same medical, sanitary, catering and other facilities as those for all other prisoners does not in itself raise an issue under Article 3 of the Convention (see Korobov and Others v. Russia (dec.), no. 67086/01, 2 March 2006). Consequently, although the Court regrets the absence of any detailed submissions on the provision of counselling on risk behaviours and modes of HIV transmission for detainees, it cannot find that the authorities failed in the circumstances of the case to secure the applicant’s health.

54. Therefore, the Court considers that the applicant’s complaint does not disclose any appearance of a violation of Article 3 of the Convention. It follows that it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Conditions of transport to/from, and confinement at, the courthouse

55. The Government submitted that the applicant should have raised his complaints about the conditions of his transport and of his confinement at the courthouse before a prosecutor. They concluded that the applicant had not exhausted the domestic remedies in that respect.

56. The Court notes, and this was not disputed by the parties, that the applicant raised both complaints before the Department of the Interior of Moscow, which examined them in December 2003 (see paragraph 33 above). This is confirmed by the Russian authorities’ reports of 16 December 2003 and 15 and 20 March 2006, which were produced by the Government. Hence, the applicant made the Russian authorities sufficiently aware of his complaints and gave them an opportunity to examine the issues raised and, if appropriate, to remedy the situation. In any event, the Government omitted to specify what redress could have been afforded to the applicant as a result of a complaint to a prosecutor. The Court therefore finds that this complaint cannot be rejected for failure to exhaust domestic remedies.

57. The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Merits

1. Submissions by the parties

58. The applicant submitted that during the trial he had been transported on one hundred days between the remand centre and the City Court. Before departure he had been kept in a tiny cell and had no breakfast or other food during the day. At the City Court he had been kept in a cell measuring 2.4 square metres together with several other detainees. After the hearing he had been taken back to that cell and remained there until 6 to 8 p.m. without access to a toilet. The journey from the courthouse to the remand centre took several hours so that he reached his cell at about midnight.

59. The Government argued that the applicant’s complaints were unfounded since he had not specified the dates in which the transfer from the courthouse to the remand centre had allegedly taken several hours. Such transfer had not normally exceeded thirty minutes. Given the security considerations, from December 2003 onwards the applicant and his co-defendants had been taken by direct transfer. Before leaving for the courthouse the applicant had been given a hot breakfast and a dry ration in compliance with the applicable legislation (see paragraphs 36 and 37 above). He had also been allowed to take with him food supplied by his relatives or bought in the prison shop. At the courthouse, the applicant had been kept in decent conditions in a cell measuring 1.95 square metres.

2. The Court’s assessment

60. The Court reiterates that to be regarded as degrading or inhuman for the purposes of Article 3 of the Convention treatment must attain a minimum level of severity (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001‑VII). 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).

61. The Court observes at the outset that the thrust of the applicant’s complaint is the length of the transferrals between the remand centre and the courthouse, the conditions of his confinement at the convoy premises in the courthouse and hunger on the days of court hearings. The Court cannot accept as evidence the document, submitted by the Government, which indicated the timing of the transport of detainees. That document was undated and omitted to indicate the period of time it concerned. The Government provided no other evidence in support of their argument that the transfers had not exceeded thirty minutes. On the other hand, it appears that the difficulties relating to the transport of detainees between the remand centre and the Moscow City Court in 2002 were acknowledged by the national authorities, in particular as regards the excessive length of transfers and overcrowding of prison vans (see paragraph 33 above; see also the letter of 26 November 2003 from the head of the Moscow Directorate for Execution of Punishments, cited in Starokadomskiy v. Russia (dec.), no. 42239/02, 12 January 2006, concerning the applicant’s co-defendant in the domestic proceedings).

62. In that connection, the Court observes that it has found a violation of Article 3 in a case where an applicant was transported together with another detainee in a single-occupancy cubicle which measured one square metre (see Khudoyorov v. Russia, no. 6847/02, §§ 117-20, ECHR 2005‑... (extracts)). The Court noted that the applicant in that case had to endure these cramped conditions twice a day on two hundred days when court hearings were held.

63. As to the confinement at the courthouse, the Court accepts the Government’s submission that the applicant was kept in a cell measuring 1.95 square metres. In the absence of the Government’s comments, the Court is inclined to accept the applicant’s allegation that he had to share that cell with one or more detainees. It does not lose sight of the fact that the applicant was kept there only part of the day (see Fedotov v. Russia, no. 5140/02, § 68, 25 October 2005). However, in view of the significant number of times when the applicant was placed in those cramped conditions, the Court considers that this aspect of the case also raises a concern under Article 3 of the Convention.

64. Furthermore, it appears that the applicant did not receive appropriate nutrition on the days when he was transported to the court (compare Bagel v. Russia, no. 37810/03, §§ 67-71, 15 November 2007, and Nakhmanovich v. Russia (dec.), no. 55669/00, 28 October 2004). No evidence was submitted that the applicant had received any dry ration instead. In any event, as can be seen from the reports submitted by the Government, detainees could not use dry rations because the convoy premises at the courthouse had no facilities for heating or eating food. Permission to take one’s own food cannot be a substitute for appropriate catering arrangements because it remains the State’s obligation to ensure the well-being of persons deprived of their liberty (see Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; cf. Valašinas v. Lithuania, no. 44558/98, § 109, ECHR 2001‑VIII).

65. Thus, in the present case the applicant was transported on numerous occasions in unacceptable conditions. On those days he was not provided with adequate nutrition and was confined in cramped conditions at the courthouse. The above treatment occurred during his trial, that is when he most needed his powers of concentration and mental alertness. The Court takes the view that the above considerations, taken cumulatively, are sufficient to warrant the conclusion that the inhuman and degrading treatment to which the applicant was subjected exceeded the minimum level of severity required for the finding that there has been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

66. The applicant complained under Article 5 § 3 of the Convention that his continued detention on remand had not been properly justified. The relevant part of Article 5 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.”

A. Admissibility

67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

68. The Government submitted that Article 239-1 of the RSFSR Code of Criminal Procedure, regarding the time-limits for detention, did not apply to the applicant because he had been charged with a particularly serious offence. After the new Code of Criminal Procedure had entered into force in July 2002, the applicant’s detention was extended because of the gravity of the charges against him and the risk of his absconding and obstructing justice. The length of the applicant’s detention was accounted for by the slow pace of the trial which was in its turn affected by the case’s complexity, the large number of defendants and the applicant’s and his counsel’s conduct during the trial.

69. The applicant maintained his complaint.

70. The Court observes that the applicant’s detention started on 20 January 1998, the date of his arrest, and ended on 10 November 2004, the date when the City Court gave judgment in his criminal case. The overall duration thus amounted to six years, nine months and twenty-two days. The Court has competence ratione temporis to examine the period after the entry into force of the Convention in respect of the Russian Federation on 5 May 1998, that is six years, six months and eight days.

71. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006‑...). 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.

72. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the 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 (loc. cit.). The Court will therefore examine the reasons given by the Russian courts, namely the gravity of the charges against the applicant and that he might flee or obstruct justice.

73. The Court has repeatedly held that, although the gravity of the charges or the severity of the sentence faced is relevant in the assessment of the risk of an accused absconding, re-offending or obstructing justice, it cannot by itself serve to justify long periods of detention on remand (see, among others, Ilijkov v. Bulgaria, no. 33977/96, §§ 80 and 81, 26 July 2001).

74. The Court observes that the City Court used the same summary formula to extend the detention of several defendants, without describing their personal situation in any detail. The Court does not exclude the possibility that there might be a general risk flowing from the organised nature of the alleged criminal activities of an applicant which can be accepted as the basis for his or her detention for a certain period of time (see Kučera v. Slovakia, no. 48666/99, § 95, ECHR 2007‑... (extracts) and Celejewski v. Poland, no. 17584/04, §§ 37 and 38, 4 May 2006). In such cases, involving numerous accused, the need to obtain voluminous evidence from many sources and to determine the facts and degree of alleged responsibility of each of the co-accused may constitute relevant and sufficient grounds for an applicant’s detention during the period necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused (loc. cit.). However, in the present case the domestic court did not demonstrate the existence of any concrete facts in support of the conclusions that the applicant would obstruct justice. Nor did it point to any aspects of the applicant’s character or behaviour that would justify their conclusion that there was a persistent risk that he would abscond.

75. The inordinate length of the applicant’s detention is a matter of grave concern for the Court. At no point in the proceedings did the domestic authorities consider whether his right “to trial within a reasonable time or to release pending trial” had been violated. The Court considers that, in these circumstances, the Russian authorities should have put forward very weighty reasons for keeping the applicant in detention.

76. In the light of the above considerations, the Court finds that the authorities failed in their duty to provide sufficient reasons for the applicant’s detention for more than six years. In those circumstances it is not necessary to determine whether the proceedings were conducted with “special diligence”.

77. There has therefore been a violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

78. The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive. The relevant part of Article 6 § 1 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...”

A. Admissibility

79. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Period to be taken into consideration

80. The Court recalls that the period under consideration in the present case began on 20 January 1998, when the applicant was arrested, and ended on 15 November 2005, when the court of appeal upheld the first-instance judgment. Thus, the overall length of the proceedings was seven years, ten months and twenty-seven days, of which seven years, six months and thirteen days fall within the Court’s competence ratione temporis.

2. Reasonableness of the length of proceedings

81. The Government argued that the length of the proceedings was accounted for by the complexity of the case, the large number of defendants, their request for a trial by a jury and their lawyers’ repeated failure to attend hearings. Certain witnesses and victims also defaulted and had to be compelled to attend. Several adjournments occurred because the presiding judge was sitting in another case. According to the Government, in total over one hundred hearings were adjourned, of which forty-six solely because the defendants’ lawyers failed to attend; thirty-five other hearings were adjourned for the same reason or because witnesses and victims had defaulted or because defendants or their counsel were ill.

82. The applicant submitted that he could not be criticised for having chosen to be tried by a jury. Even after the jurisdictional issue had been determined, nothing happened in the case for more than two years. Although numerous hearings had been scheduled during 2001 and 2002, all of them were adjourned, the real reason being the presiding judge’s involvement in other proceedings. In 2001 and 2002 the presiding judge had been replaced by other judges of the City Court; lay judges had been replaced several times. In 2001, at least, the City Court had taken no measures to ensure certain defendants’ or their lawyers’ presence each time when a hearing was scheduled. The applicant and his counsel had attended the hearings and had not contributed to the length of the proceedings.

83. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). The Court has examined the applicant’s complaint, bearing in mind that it essentially concerned the trial and appeal stages of the proceedings (see Dawson v. Ireland (dec.), no. 21826/02, 8 July 2004).

84. The Court accepts that the case revealed a certain degree of complexity; it concerned a large number of defendants who had been charged with several counts of serious criminal offences. While admitting that the task of the trial court was rendered more difficult by these factors, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings (see Mattila v. Finland, no. 77138/01, § 15, 23 May 2006). It took more than one year to determine which court was competent to try the case; however, the procedural complexity because of the need to transfer the case between various courts cannot justify the delay either (see S.H.K. v. Bulgaria, no. 37355/97, § 32, 23 October 2003, and Styranowski v. Poland, judgment of 30 October 1998, Reports 1998‑VIII, pp. 3376‑77, § 51).

85. As to the applicant’s conduct, the Court recalls that an applicant cannot be required to co-operate actively with the judicial authorities, nor can he be criticised for having made full use of the remedies available under the domestic law in the defence of his interests (see, among others, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005). It has not been alleged by the Government that the applicant defaulted, went beyond the limits of legitimate defence by lodging frivolous petitions or unsubstantiated requests or otherwise contributed to the length of the proceedings (see Komarova v. Russia, no. 19126/02, § 50, 2 November 2006). It appears that the absence or illness of the applicant’s counsel was a cause of delay on only four occasions. On balance, the Court finds that the applicant did not contribute significantly to the length of the proceedings.

86. On the other hand, the Court considers that certain delays were attributable to the domestic authorities. The Court has already noted the one-year delay in resolving the jurisdictional issue. After the case had been assigned to the City Court in September 2000 there were unjustified gaps in the proceedings between May and September 2001, April and June 2002, July and September 2002. It was not in dispute between the parties that many hearings had been adjourned, in particular because the presiding judge had been sitting in another case or because other defendants’ lawyers had defaulted. The actual examination of the case started only in March 2003, that is two years and five months after the case had been listed for trial. It also transpires from the case file that on several occasions in 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses, victims and the interpreter.

87. Although the State cannot be held responsible for every shortcoming on the part of a legal-aid lawyer and, even less, of a privately-retained lawyer (see Hermi v. Italy [GC], no. 18114/02, § 96, ECHR 2006‑...), that does not absolve the State from the duty to organise its legal system in such a way that its courts can meet the obligation to hear cases within a reasonable time (see Sürmeli v. Germany [GC], no. 75529/01, § 129, 8 June 2006). The Government submitted no explanation as to whether the orders given to the bailiffs had been complied with. No evidence was adduced as to whether any measures available under national law to discipline the defaulting participants in the proceedings had been taken (see Zementova v. Russia, no. 942/02, § 70, 27 September 2007; Sidorenko v. Russia, no. 4459/03, § 34, 8 March 2007; and Sokolov v. Russia, no. 3734/02, § 40, 22 September 2005).

88. Nor have the Government provided any convincing explanation for temporarily replacing the presiding judge and lay judges in the course of the proceedings, which undeniably contributed to their overall duration. The Court considers that a substitution should not be made for the personal convenience of the court, and the reasons for a substitution should be stated on the record.

89. Finally, the Court takes into account that throughout the proceedings the applicant remained in custody, so that particular diligence on the part of the authorities was required. The Court also does not lose sight of its conclusions in relation to the applicant’s complaint about the conditions of his transport and confinement on the days of the court hearings, most of which resulted in adjournment (see paragraph 65 above).

90. Making an overall assessment, the Court concludes that in the circumstances of the case the “reasonable time” requirement has not been respected. There has accordingly been a violation of Article 6 § 1 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

91. 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. Damage

92. The applicant claimed 80,000 euros (EUR) in respect of non-pecuniary damage.

93. The Government submitted that the applicant’s claims were unfounded.

94. The Court considers that the applicant must have suffered frustration and a feeling of injustice as a consequence of the unacceptable conditions of his transport and confinement on the days of court hearings, his exceptionally long detention on remand without sufficient reasons and the slow pace of the criminal proceedings against him. The Court considers that the applicant sustained non-pecuniary damage, which would not be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 9,600 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

95. The applicant also claimed EUR 4,000 in respect of his representation before the Court by Mr S. Ibragimov who had acted under a contingency fee agreement.

96. The Government argued that the applicant had provided no document, including the agreement he had referred to, proving that the applicant had incurred any costs.

97. The Court notes that the applicant did not apply for legal aid in the proceedings before the Court.

98. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court observes that the applicant was represented throughout the proceedings before the Court by Mr Ibragimov. However, the applicant did not submit a copy of any agreement showing that he had already incurred the above expenses or had been under a legally enforceable obligation to pay any fee to Mr Ibragimov (see Papastavrou and Others v. Greece (just satisfaction), no. 46372/99, § 24, 18 November 2004; Belevitskiy v. Russia, no. 72967/01, § 127, 1 March 2007; Flux v. Moldova (no. 3), no. 32558/03, § 38, 12 June 2007; and Shukhardin v. Russia, no. 65734/01, § 133, 28 June 2007). The applicant did not submit any itemised statements, or the rates and number of hours for which counsel had charged. The Court therefore rejects the applicant’s claim under this head.

C. Default interest

99. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints about the conditions of the applicant’s transport and confinement on the days of court hearings, the length of the applicant’s detention and that of the criminal proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a breach of Article 3 of the Convention on account of the conditions of the applicant’s transport and confinement on the days of court hearings;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds that there has been a violation of the “reasonable-time” requirement of Article 6 § 1 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,600 (nine thousand six hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy