CASE OF SULDIN v. RUSSIA

FIFTH SECTION

CASE OF SULDIN v. RUSSIA

(Application no. 20077/04)

JUDGMENT

STRASBOURG

16 October 2014

FINAL

23/03/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Suldin v. Russia,

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

Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Helena Jäderblom,
Aleš Pejchal,
Dmitry Dedov, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 23 September 2014,

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

PROCEDURE

1. The case originated in an application (no. 20077/04) 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 Vladimir Anatolyevich Suldin (“the applicant”), on 11 March 2004.

2. The applicant was represented by Ms S. Davydova, a lawyer from the Centre of Assistance to International Protection sitting in Moscow. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been detained in inhuman and degrading conditions in Ufa IZ-3/1 pre-trial detention facility. He further complained that the Russian authorities had failed to secure the attendance of witnesses whom he had not had an opportunity to examine at any stage of the proceedings.

4. On 16 February 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961. He is currently serving his prison sentence in Pechora prison (Komi Republic).

A. The criminal proceedings against the applicant

6. On 20 December 2001 a judge at the Supreme Court of Bashkortostan (Верховный суд Републики Башкорстан) ordered the interception of the applicant’s telephone calls.

7. On 19 January 2002 the applicant was arrested and remanded in custody on suspicion of several counts of theft and aggravated murder. The prosecution’s case was that the applicant, the chief security officer of the joint stock company “Bashneft” (АНК «Башнефть»), together with other security officers, had repeatedly stolen petroleum products from Tuymazy gas-processing plant (Туймазинский газоперерабатывающий завод) belonging to ”Bashneft”. The applicant was also accused of having killed O., a presumed accomplice, in order to cover up the criminal activity.

8. On 23 November 2002 a senior investigator of the Bashkortostan Prosecution Office (Прокуратура Републики Башкорстан) dismissed the applicant’s complaints concerning different investigation steps. The applicant argued, inter alia, that:

“As it appears from a comparison of the audio records with the printed records of telephone conversations, the records concerning the telephone conversations of [the applicant] show traces of forgery, the audio cassettes contain much less conversations than the printed records. Consequently, it is impossible to establish the time of each conversation. The annotation of the conversations shows that they were forged.

...

One of the groups which was looking for [O.] ... on 14 January 2002, was headed by ... the brother of co-defendant [Nu.]. It follows that there are reasonable doubts as to the truthfulness of the testimony given by this witness.”

9. The prosecutor stated in his decision in particular that:

“There is no need to examine the audio records on the audio cassettes Nos. 613, 933 and 137, as there are no reasons to consider that the said audio records are forged or that any other modifications were made. Apart from this, many of the audio records ... do not concern the subject of the investigation .... The most important audio records were submitted to [forensic experts] who confirmed that the records did not show any signs of forgery or any other modifications made in the course of the recording or afterwards.”

10. In the proceedings, the applicant and certain co-defendants pleaded not guilty. The remaining co-defendants pleaded guilty in part. Some of them, including co-defendant Nu. in respect of the theft on the night of 6 December 2001, also confessed to having falsely accused the applicant during the pre-trial investigation under pressure from the police officers. The records of telephone conversations between persons involved in the petroleum thefts were also admitted in evidence. In this respect, the applicant submitted at trial that the audio cassettes with the records of these conversations showed traces of forgery and that the evidence of the forensic expert had been carried out contrary to the law. He stated that he had never had any conversation with anybody in respect of the stealing of petroleum products from Tuymazy gas-processing plant.

11. On 16 June 2003 a judge at the Supreme Court of Bashkortostan found the applicant guilty as charged and sentenced him to twenty years’ imprisonment.

12. With respect to the theft of petroleum products on the night of 6 December 2001, the court heard O.’s mother and V. with whom O. lived in partnership. It also relied on statements by witness N. given during the pre-trial investigation, in which he confirmed that a man named Vladimir (the applicant’s first name) had approached him offering to find buyers for petroleum products and that they had made a deal on 5 and 6 December 2001. He also stated that on 6 December 2001 at about 4 or 5 a.m., he had given RUB 50,000 to Vladimir. According to him, he did not know that Vladimir had been selling the petroleum products illegally. These facts were corroborated by corresponding telephone records between N. and the subscriber of a mobile phone which was used by the applicant. In this respect, the court noted:

“According to the records of the telephone conversations between [N.] on mobile phone ‘8-901-475-5808’ and the subscriber of mobile phone number’“8-293-38-266’ (this telephone was used by [the applicant]) [N.] began talking with the subscriber on 19 November 2001, talked with the same subscriber a few times on 4 December 2001, and from 3.45 pm on 5 December 2001 until 5.10 am on 6 December 2001 talked with him on 24 occasions.”

N. did not appear at the trial. According to the Government, during their confrontation conducted by an investigator at the pre-trial investigation stage on 19 June 2002 in the presence of the applicant’s lawyers, N. claimed that he had never seen the applicant before and had made a deal with someone else. At the defence request, a record of the confrontation was prepared.

The court did not specify the reasons why witness N. failed to attend the trial merely stating that “the reasons for his non-attendance were recognised by the court as excluding the possibility for him to take part in the hearing”.

13. The court further took into account the pre-trial submissions of witnesses S., Kha., Na. and G., none of whom appeared at the trial. The witnesses described, inter alia, the events of 5 and 6 December 2001 but did not say anything about the applicant’s direct participation in the theft. The court decided to read out their statements, on the grounds that it had been impossible to ensure their attendance. It appears from the documents in the case file that witnesses Kha. and Na. did not attend the trial since they had been on mission, and that witness Si. (see paragraph 20 below) and G. had apologised for not attending due to family reasons.

14. The court further referred to material from the investigation in which witness Na. had shown the places where the cisterns had entered the premises of the petroleum company.

15. The judgment also referred to the pre-trial statements of co-defendants Mi., Mu. and Gu., which were inconsistent with their evidence at trial, one of them indicating the applicant as a person who had been on the premises of the petroleum company on the relevant night. The court finally relied on certain material evidence relating to the time in question.

16. As regards the theft of petroleum products on the nights from 29 to 30 December 2001 and from 11 to 12 January 2002, the applicant, together with certain co-defendants, pleaded not guilty at trial. Due to the inconsistencies between the co-defendants’ pleadings at trial and their pre-trial statements, the court relied on their original declarations from which it appeared that the applicant had assured the free passage of fuel trucks onto the premises of the territory of the petroleum company. The court stated in this respect that their original statements were consistent with other evidence contained in the case file and given at trial.

17. In respect of both thefts, the court further relied on the pre-trial submissions of witnesses Si., Gi., A., T. and Sh., who had failed to appear at the trial. They did not mention that the applicant had been involved in the theft, merely describing the events of that night. The applicant allegedly objected to the reading out of the statements which they had made at the pre-trial stage, on the grounds that he wished to examine these witnesses in person. According to him, his objections were rejected.

Moreover, the court heard witness Khu. whose pre-trial testimony had also been read out because of certain contradictions with his statement at trial. According to the court, his pre-trial statements were consistent with the pre-trial statements of witnesses Si., Gi., A. and T.

18. In respect of the theft on the night from 11 to 12 January 2002, the applicant and three co-detainees pleaded not guilty and three co-defendants pleaded partly guilty. It appears from the judgment that at trial co-defendant Nu. stated that he had been forced to incriminate the applicant and co-defendants B. and Sh., having been put under pressure by the police officers at the pre-trial stage.

19. The court further relied on the recorded telephone conversations stating, in particular, that:

“... the guilt of the defendants in respect of the theft of petroleum products on the nights from 29 to 30 December 2001 and from 11 to 12 January 2002 is confirmed by the records of the inspection on the site and the examination of the audio cassettes containing the telephone conversations from the mobile number used by [the applicant]. For example, on the nights of 29 December 2001, 30 December 2001, 11 and 12 January 2002 at night there were phone calls from the number used by [the applicant] to the mobile phones of [O.], [co-defendant Sh.]; [the audio cassettes also contained] the phone calls to the work phone of [co-defendants Nu.]. The conversations concerned the journey of petrol tankers which arrived in order to collect petroleum products, the fact that the petroleum tanker had been detained on 12 January 2002 ...

At trial these audio cassettes ... were examined and ... [O.’s mother] and [co-defendant Nu.] recognised the voices of [O.], [of the applicant and defendants Sh. and his own voice].”

The court also heard three employees of the petroleum company who described the relevant circumstances of the theft in question.

20. According to the Government, the statements of absent witnesses S., Na., G., Si., Gi., A. and T. and Sh. did not incriminate the applicant, as they only described the circumstances of the theft and did not provide any information suggesting that the applicant had participated in the offence.

The Government also state that the Russian authorities took all possible measures to ensure the witnesses’ attendance. They note that by a court order of 24 January 2003, the absent witnesses were summoned to appear at trial. That order was to be enforced by the Bashkortostan and Tatarstan authorities respectively, neither of which succeeded in bringing the witnesses before the court. The case file includes telegrams and official reports containing information as to why witnesses G., Si., Na. and Kha. were absent (see also paragraph 13 above).

21. With respect to the murder of O., the court relied on statements of the victim’s parents and partner during the trial, recordings of his telephone conversations with the applicant, and the results of several expert examinations. The court noted, inter alia, that:

“In accordance with the records of the telephone conversations of [O.], he regularly contacted [the applicant] who used the mobile phone number ‘8-902-38-266’, registered in the name of his wife ...

...

[O.] made the last call from his mobile phone to the home number of his mother (6-21-63) on 14 January 2002 at 6.48.52 pm., which is consistent with the testimony of [his mother] given at trial in which she stated that this was precisely the time at which her son had called home and said that [the applicant] was killing him ...”

The court examined the reasons submitted by [the applicant] and his representatives for claiming that the surveillance of the telephone conversations had been carried out contrary to the criminal procedure laws and the Constitution ... on the grounds that the permission for the surveillance granted by the Supreme Court had been given in respect of the mobile phone of [the applicant], while the police officers had in fact carried out surveillance of the mobile phone of his wife ...

...

As it appears from the judgment of the Supreme Court of Bashkortostan of 20 December 2001 ... the permission related to the surveillance of the telephone conversations at the applicant’s home and ... place of work, as well as the surveillance of the mobile phone of [the applicant]. The court clearly established that [the applicant] had used the mobile phone “8-293 (or 902)-38-266” which was registered in the name of his wife ...”

22. In his grounds of appeal the applicant complained, inter alia, that the trial court had not secured the attendance of the key witnesses N. and other witnesses. He also stated that the records of the telephone conversations were not officially certified and, therefore, could be forged.

23. On 24 September 2003 the Supreme Court of the Russian Federation upheld the judgment finding that the court of first instance had correctly assessed the facts established during the court proceedings and had reached the right legal conclusions. It stated, inter alia, that the fact that on the night to 12 January 2002 an organised group involving the employees of the plant and paramilitary protection unit, together with a member of the road police (State Inspectorate for Road Safety - государственная инспекция по безопасности дорожного движения (ГИБДД)) committed the theft of the petroleum products to the value of RUB 34,483.56 was established on the basis of the statements of three co-defendants given at the trial.

24. It further stated that the applicant’s guilt in this case, as well as his guilt of the thefts on the nights to 6 and 30 December 2001 respectively, was confirmed by the testimony of four co-defendants, by the statement of witness N. as to the handover of RUB 50,000 to the applicant, by the content of the transcription of the applicant’s telephone conversations with the above co-defendants according to which the applicant had several times spoken about the different matters relating to the theft, by the record of the inspection of the scene and of cistern KAMAZ and its trailer, by the investigation experiments and by other evidence which had been described in detail in the first instance judgment.

25. The Supreme Court added that, according to the records of the confrontations between the applicant and other persons, including two of co-defendants M. and Nu., who had denounced his involvement in the thefts, the applicant had not denied their assertions but had left them “without comments”.

26. In respect of the applicant’s allegation that the audio records were forged, the court noted that the expert forensic report showed no traces of forgery or any other modifications.

B. Conditions of the applicant’s detention

27. The applicant was held in Ufa IZ-3/1 pre-trial detention facility (ФБУ ИЗ-1/3 ГУФСИН г. Уфы) from 10 May to 20 December 2002 and from 7 February to 21 December 2003. According to the Government, on 21 December 2003 the applicant was transported to Mikunsky ULIU prison in the Komi Republic (Микуньское УЛИУ ГРОВД Республики Коми) to serve the rest of his sentence. Moreover, from 20 December 2002 to 7 February 2003 he was detained in the temporary detention unit at Tuymazinsky police station (ИВС ГРОВД гор. Туймазы) to be at the disposal of the Tuymazinsky City Court (Туймазинский городской суд).

28. In his letter of 22 December 2005, the applicant stated that in Ufa IZ-3/1 pre-trial detention facility, he had mostly been detained, together with three other co-detainees, in buildings nos. 2 and 3 in cells measuring 3x4 metres equipped with two bunk beds. In his cell in building no. 2, there was a pan for use as a lavatory and a washstand just above it, the toilet was not separated from the living area, and the stench from it was unbearable. The inmates had to use a sheet as a partition to afford themselves a small degree of privacy, but even that was later forbidden by the prison authorities. There was no table in the cell. Daily walks lasted generally 30 minutes and exceptionally one hour.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. Article 278 of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 (as in force from July 2002) provides that witnesses are to be examined directly by the trial court. A statement made by a victim or witness during the pre-trial investigation or an earlier hearing may be read out with the parties’ consent (i) if there are substantial discrepancies between his earlier statement and his testimony before the court, or (ii) if the victim or witness has not appeared before the court (Article 281 § 1).

30. Moreover, Article 413 of this Code provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31. The applicant complained that the conditions of detention in Ufa IZ-3/1 pre-trial detention facility had been in breach of Article 3 of the Convention which reads as follows:

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

A. The parties’ submissions

32. The Government noted at the outset that it was not possible to collect any information concerning the cells in which the applicant had been detained as all documents concerning their numbers and the number of detainees who had shared the cells with him were destroyed on 26 and 29 January 2009 respectively, because the storage period set by domestic law had expired. However, they strongly disagreed with the applicant’s allegations that the documents concerning his case had been destroyed a matter of days before the communication of his application, maintaining that it had been because the statutory storage period had expired.

33. In order to describe general conditions of detention in Ufa IZ-3/1 pre-trial detention facility, the Government submitted a number of the information notices issued by the Governor of this institution on 14 April 2009. Relying on these documents, they maintained that the cells had not been overcrowded specifying in this respect that during the period from May 2002 and December 2003 the capacity of the detention facility was 1260 detainees and that at the relevant time, there were between 1178 and 1260 detainees. The facility contained 270 cells and 13 cells of common detention where persons arriving at the detention facility are temporarily placed until their registration is finished. The Government further stated that during the relevant period, the number of sleeping places in the cells had corresponded to the number of detainees and that the applicant had been provided with an individual sleeping place. The sanitary conditions had been sound and the applicant could use the toilet in private as it had been separated from the living area of the cells by a 1 metre-high door (the English version of the Government’s observations indicates the height of 0.7 metre). The cells had been equipped with a ventilation system and had been ventilated naturally through the windows. Moreover, the applicant had been allowed at least one hour outdoor exercise a day in one of 55 walking yards which were equipped by benches, 13 walking yards were adapted for sports activities. The Government joined to their written observations two pictures of the sanitary equipment in a cell in building no. 2 and two pictures of the walking yards.

34. The applicant’s representative stated in her written observations that the cells in Ufa IZ-3/1 pre-trial detention facility had been overcrowded. Referring to annex no. 2 to the Government’s written observations, she noted that the applicant had been kept in cell no. 42 in building no. 2, which had measured 4.44 metres square and had been equipped with four sleeping places. Thus, when the cell was fully occupied, each inmate had 1.11 metres square of living space at his disposal.

35. The applicant’s representative disputed the Government’s argument that the number of detainees had corresponded to the number of sleeping places and that the applicant had been provided with an individual sleeping place. She submitted that the toilet had not been separated from the living area and that the applicant and his co-detainees had temporarily used a sheet as a partition until the authorities had prohibited them from doing so. The opportunity to take outdoor exercise had been limited to between twenty and thirty minutes a day, which had been confirmed by witness statements written by seven other inmates who had also been detained in the same detention facility. The applicant’s representative also questioned the photographs submitted by the Government, pointing out that it was unclear when the pictures had been taken and if they really depicted the cell in which the applicant had been detained. She wondered why the documents concerning the applicant’s case had been destroyed a matter of days before his application lodged with the Court was communicated to the Government.

36. In his handwritten observations, the applicant maintained that he had originally been put in a cell in building no. 5 and that, later on, he had been transferred to building no. 2 and kept for six months in cell “no. 4:2” measuring 3x2 metres where he had stayed together with three other co-detainees, N., M. and G. According to him, the corridor between the beds (he does not specify their number) was so narrow that two persons could not pass through at the same time. The rest of the description of the cell mostly corresponded to his original sayings, but, contrary to his original allegations, he submitted that the daily walks had lasted one hour (see paragraph 28 above). The applicant added that in building no. 3 the condition of his cell had been similar to that in building no. 2, contrary to his cell in building no. 8 where the conditions of detention had been better, but where he had stayed only for two weeks. He noted that as the Government had not been able to submit relevant documents concerning his detention and that he did not dispose of such documents, he had to describe his conditions of detention on the basis of what he recollected from his memory. He added that the pictures of the cell submitted by the Government showing the sanitary equipment did not correspond to what had existed at the time when he had been detained in Ufa IZ-3/1 pre-trial detention facility.

B. The Court’s assessment

1. Admissibility

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

2. Merits

38. The Court notes that the parties agree that the applicant was detained in Ufa IZ-3/1 pre-trial detention facility from 10 May to 20 December 2002 and from 7 February to 21 December 2003. They disagree, however, on many aspects of the conditions of the applicant’s detention in this pre-trial detention institution.

39. The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence on the material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 123, 10 January 2012; Reshetnyak v. Russia, no. 56027/10, § 92, 8 January 2013).

40. In the present case the Government failed to provide any original documents to refute the applicant’s allegations, claiming that they had been destroyed after the expiry of the statutory time-limit for their storage. Their submissions are based on the information notices issued by the Governor of the detention facility in April 2009 (see paragraphs 33 and 33 above). The Court notes, however, that these documents, issued more than five years after the applicant’s detention in that facility had come to an end (see paragraph 27 above), contain no clear references to the cells in which he was detained, their size and sanitary equipment in the relevant periods in 2002-03.

41. Admittedly, the destruction of the relevant documents due to expiry of the time-limit for their storage, albeit regrettable, cannot in itself be regarded as an unsatisfactory explanation for the failure to submit the relevant documents (see Shcherbakov v. Russia, no. 23939/02, § 77, 17 June 2010; Ivakhnenko v. Russia, no. 12622/04, § 32, 4 April 2013). However, on several previous occasions when the Government had failed to submit original records, the Court has held that documents prepared after a considerable period of time cannot be viewed as sufficiently reliable, given the length of time that has elapsed (see, e.g., Novinskiy v. Russia, no. 11982/02, § 105, 10 February 2009, and Shilbergs v. Russia, no. 20075/03, § 91, 7 December 2009). The Court is of the view that those considerations hold true in the present case. Moreover, the Government did not submit any convincing argument that the photographs submitted by them showing the sanitary equipment of a cell and walking yards were those used by the applicant.

42. The Court observes that the applicant submitted a rather detailed description of the condition of the cells in which he had been held (see paragraphs 28 and 35-36 above). He constantly argued that he had been detained together with three co-detainees in overcrowded conditions during the major part of the period of his pre-trial detention in Ufa IZ-3/1 facility, referring to the cells measuring 3x4, 3x2 metres and 4.44 metres square (idem).

43. The Court reiterates that in a number of cases the lack of personal space afforded to detainees in Russian remand centres was so extreme as to justify in itself a finding of a violation of Article 3 of the Convention. In those cases, applicants were usually afforded less than 3.5 sq. m of personal space (see, among others, Lind v. Russia, no. 25664/05, § 59, 6 December 2007). At the same time, the Court has always refused to determine, once and for all, how many square metres should be allocated to a detainee in terms of the Convention, having considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise, the physical and mental condition of the detainee and so forth, play an important part in deciding whether the detention conditions complied with the guarantees of Article 3 of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 94-95, ECHR 2012 with further references).

44. Having regard to the Government’s failure to submit the original documents relating to the two relevant periods of the applicant’s detention, which cannot be compensated by the information notices issued by the Governor containing only the general data as to the number of cells, their size and capacity and the capacity of the whole pre-trial facility, and taking into account that the applicant described his conditions of detention in a rather detailed way, despite some inconsistencies as to whether he was provided with an individual sleeping place during the whole period of his detention in Ufa IZ-3/1 facility, the Court can establish beyond a reasonable doubt that at the material time the pre-trial detention facility was overcrowded.

45. As to other conditions of detention such as the sanitary equipment, ventilation of the cells and detainees’ outdoor walks, the Court notes that although there is no indication in the present case that the national authorities intended to humiliate or debase the applicant, it finds that the material conditions of detention in which he described to live one year and eight months, which were not reliably and credibly refuted by the Government, caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.

46. The Court finds, accordingly, that there has been a violation of Article 3 of the Convention because the applicant was subjected to inhuman and degrading treatment on account of the conditions of his detention in Ufa IZ-3/1 pre-trial detention facility from 10 May to 20 December 2002 and from 7 February to 21 December 2003.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

47. The applicant complained that in the course of the criminal proceedings against him he had not received a fair trial, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads, so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

A. The parties’ submissions

48. The Government submitted that the fact that the applicant had not had an opportunity to question the witnesses directly did not cause a violation of his defence rights, the conviction against him having been based on testimony taken directly during the trial and other evidence. Moreover, the applicant and/or his legal representative had had an opportunity to question witness N. during the confrontation when he had claimed that he had never seen the applicant before and had made a deal with someone else. However, the telephone records and the statements of witness N. given in the course of the preliminary investigation proved otherwise. The Government added that the records of questioning had been read out and obtained in full accordance with the criminal procedural law.

49. According to the Government, the domestic authorities had taken all possible measures to ensure the witnesses’ attendance. The trial court had issued an order summoning the absent witnesses to appear, but the relevant authorities had been unable to execute it.

50. The applicant complained that the authorities had failed to secure the attendance of main prosecution witness N., who during the pre-trial confrontation had denied knowing the applicant. They had also failed to provide him with an opportunity to examine other witnesses at any stage of the proceedings. In his opinion, the efforts made to secure the witnesses’ presence before the court had been insufficient. The prosecution witnesses had not been present, despite it having been binding on the prosecution to secure their attendance. Nevertheless, the statements of the witnesses who had failed to appear at the trial had all been read out, despite the applicant’s objections.

B. The Court’s assessment

1. Admissibility

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

2. Merits

52. The Court first recalls that as the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, e.g. Krombach v. France, no. 29731/96, § 82, ECHR 2001-II). It further reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible, but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, 27 February 2001, § 39; Al-Khawaja and Tahery, [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

53. There are two requirements which follow from the above general guarantees. First, there must be a good reason for the non-attendance of a witness. Second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery, cited above, § 119).

54. The requirement that there be a good reason for admitting the evidence of an absent witness is a preliminary question which must be examined before any consideration is given as to whether that evidence was sole or decisive. Even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witness examined. This is because, as a general rule, witnesses should give evidence during the trial and all reasonable efforts should be made to secure their attendance. Thus, when witnesses do not attend to give live evidence, there is a duty to enquire whether that absence is justified (ibid., § 120).

55. The Court notes that the present application does not concern witnesses whose identities are concealed from the accused. In the instant case the witnesses of the three events at issue did not attend and testify at trial and could thus not be heard by the trial court; nor was the defence able to examine them or observe their demeanour under questioning with a view to forming their own impression of their probity and credibility. Their witness statements made at the pre-trial stage were nevertheless read out at trial and admitted as evidence by the Supreme Court of Bashkortostan.

56. The Court observes, however, that the statements of absent witnesses S., Na., G., Si., Gi., A., T. and Sh. from the pre-trial investigation, which were read out at trial, did not directly incriminate the applicant and provided no information to suggest that he had directly participated in the theft. They fell rather into the category of corroborative evidence, as the guilty verdict on the theft charges was reached on the basis of testimony taken during the trial and of other evidence (see paragraphs 13-20 above). The Court therefore concludes that the evidence of these absent witnesses cannot be considered relevant for the conviction of the applicant. It is accordingly not required to establish whether there were good reasons for their non-attendance.

57. As to the testimonies given by witness N., the Court observes that they were used as evidence before the Supreme Court of Bashkortostan. In this context the Court has regard to the fact that the statements given by N. during the investigation seem to be to some extent inconsistent with each other. Thus, while N. stated that he had made a deal with Vladimir, the applicant’s first name, on 5 and 6 December 2001, during their confrontation conducted by the investigator, N. claimed that he had never seen the applicant before and made a deal with someone else (see paragraph 12 above). The Court therefore considers that N.’s testimony was relevant for the outcome of the case.

58. The Court further observes that the Supreme Court of Bashkortostan did not specify the reasons why witness N. failed to attend the trial merely stating that “the reasons for his non-attendance were recognised by the court as excluding the possibility for him to take part in the hearing” (see paragraph 12 above). No further explanations were given. In the Court’s view there were therefore no good reasons for the absence of witness N. and for the ensuing restriction of the applicant’s right to obtain the examination of the witness whose testimony had been used for his conviction (see Rudnichenko v. Ukraine, no. 2775/07, 11 July 2013). In these circumstances, the Court does not consider it necessary to proceed with the second part of the test as to whether the applicant’s conviction was based solely or to a decisive degree on N.’s depositions.

59. Accordingly, there has been a violation of Article 6 § 3 (d) taken together with Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

60. The applicant further complained that the conditions of his detention in the temporary detention unit at Tuymazinsky police station between 19 January and 13 March 2002 had been inhuman and degrading, in breach of Article 3 of the Convention. He also complained under Article 5 §§ 1 (c) and 3 of the Convention that his pre-trial detention had been lengthy and unlawful. Furthermore, under Article 6 §§ 1, 3 (a), (b) and (c) of the Convention, he claimed that changes were made during the trial to the scope of the charges against him, that the evidence was erroneously assessed by the domestic courts and that during the investigation, he had been interviewed as a witness in violation of his defence rights.

61. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that these complaints of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. 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

63. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

64. The Government submitted that the violation would in itself constitute sufficient just satisfaction, relying on the Court’s case-law in Silin v. Russia (no. 3947/09, 24 April 2008, § 69), and Ryakib Biryukov v. Russia (no. 14810/02, 17 January 2008, § 50).

65. The Court considers that the suffering and frustration caused to an individual who was detained in manifestly inappropriate conditions cannot be compensated for by a mere finding of a violation. The length of stay in such conditions is undeniably the single most important factor that is relevant for the assessment of the extent of non-pecuniary damage. It is also known that an initial period of adjustment to poor conditions exacts a particularly heavy mental and physical toll on the individual. Having regard to the fundamental nature of the right protected by Article 3, and additional violation of Article 6 § 3 (d) of the Convention, the Court finds it appropriate to award the applicant the amount of EUR 9,000 in respect of non-pecuniary damage.

66. The Court further observes that it has found a combination of violations in the present case. In particular, it has found a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (d) thereof. It reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010; Pichugin v. Russia, no. 38623/03, § 219, 23 October 2012). The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 30 above).

B. Costs and expenses

67. As the applicant did not claim costs and expenses, the Court makes no award under this head.

C. Default interest

68. The Court considers it appropriate that the default interest rate 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 complaint under Article 3 about the applicant’s conditions of detention in Ufa IZ-3/1 pre-trial detention facility from 10 May to 20 December 2002 and from 7 February to 21 December 2003, and the complaint under Article 6 §§ 1 and 3 (d) of the Convention admissible and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) 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 in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

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

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekMark Villiger
RegistrarPresident

Full & Egal Universal Law Academy