NOVINSKIY v. RUSSIA

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11982/02
by Ernest Ernestovich NOVINSKIY
against Russia

The European Court of Human Rights (Third Section), sitting on 6 December 2007 as a Chamber composed of:

MrB.M. Zupančič, President,
MrA. Kovler,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having regard to the above application lodged on 21 February 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ernest Ernestovich Novinskiy, is a Russian national who was born in 1963 and lives in the town of Togliatti. It appears that the applicant is currently serving a sentence of imprisonment in penitentiary establishment IK-26 in the Samara Region. He was represented before the Court by his wife Mrs O. Novinskaya and Mrs O. Preobrazhenskaya of the International Protection Centre, Moscow.

2. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the applicant

(a) The applicant’s arrest and detention

4. On 22 December 1999 police officers searched the applicant’s apartment and arrested him on suspicion of having committed a number of crimes.

5. Thereafter the applicant was remanded in custody pending the outcome of criminal proceedings against him.

6. The applicant alleged that he had been tortured during the pre-trial investigation.

(b) First instance proceedings

7. By a judgment of 1 November 2000 the Samara Regional Court convicted the applicant and a number of co-accused and sentenced them to various terms of imprisonment. Having regard to various pieces of evidence, including the oral evidence given by a number of witnesses, the court found the applicant guilty of having organised and incited murder and bribery and sentenced him to twenty-one years of imprisonment.

8. The applicant, one of the co-accused and their counsel appealed against the judgment of 1 November 2000.

(c) Appeal proceedings

9. On 22 October 2001 the Supreme Court examined and partly allowed the appeals of the defence. The applicant was acquitted on some of the charges and his sentence was reduced to nineteen years of imprisonment.

2. The applicant’s detention on remand

10. The parties seem to agree that the applicant was detained in temporary detention ward IVS-1 on 22 December 1999. On 30 December 1999 he was transferred to pre-trial detention facility IZ-63/2 in the town of Syzran of the Samara Region. From that date and until 17 January 2000 the applicant remained in that prison. On the latter date he was transferred back to IVS-1 to assist the investigation. On 21 January 2000 the applicant was again transferred to IZ-63/2 and remained there until 25 January 2001. On that date he was again taken to IVS-1 to take part in investigative actions. The applicant remained in IVS-1 until 2 February 2000. From 2 to 10 February 2000 the applicant was detained in IZ-63/2. On 10 February 2000 he was taken to IVS-1 for participation in various investigative actions. Between that date and 5 June 2000 he remained in IVS-1. From 5 to 7 June 2000 he was again detained in IZ-63/2 and on the latter date was again taken to IVS‑1. Between 17 August and 25 August 2000 the applicant was detained in IZ-63/2. From 25 to 26 August 2000 he was detained in a different cell of IZ-63/2 and on the latter date was transferred to IZ-63/1 in the town of Samara. Between 26 August 2000 and 22 February 2001 the applicant took part in the trial proceedings in his case and was held in IZ-63/1. On 22 February 2001 he was again transferred to IZ-63/2. He remained in that prison until 19 March 2001. From 19 to 23 March 2001 the applicant was detained in IVS-1. Between 23 March 2001 and 9 June 2001 he was again detained in IZ-63/2. On 9, 10 and 11 June 2001 the applicant was being transferred to IZ-63/1. From 11 to 16 June 2001 he remained in that prison. On 16 June 2001 the applicant was sent to IZ-77/3 in the city of Moscow to take part in the appeal proceedings in his case. On 13 November 2001 the authorities transferred the applicant to IZ-63/1. The applicant remained there until 5 December 2001. On that date he was transferred to penitentiary establishment IK-13 of the Samara Region to serve his sentence of imprisonment. Some time later, on 23 August 2006, the applicant was transferred from IK-13 to IK-26.

(a) Conditions of detention in temporary detention ward IVS-1 in the town of Togliatti

(i) Conditions of detention in cell no. 10

11. The applicant submitted that he had been detained in cell no. 10 holding from twelve to twenty inmates and measuring twenty square metres. The cell contained ten sleeping places. It had neither a separated toilet, nor proper ventilation. It was infected with lice and cockroaches. The applicant failed to specify the dates on which he had been detained in that cell.

12. The Government submitted that it was impossible to ascertain whether the applicant had indeed been detained in cell no. 10 since the archive documents in this connection had been destroyed when a three-year time limit expired. They submitted that it could not be excluded that the applicant had been detained in that cell. The cell is situated on the second floor. It is equipped with a wash stand and a tap with running water, hotplates for cooking, a hot water radiator, a toilet and ten individual sleeping berths. It measures 18.9 square metres (length of 5.1 m, width of 3.7 m and height of 2.8 m) and has three windows. They further submitted that the exact number of people detained in the cell along with the applicant at the relevant time could not be established. They referred to a statement of the head of the detention facility that there had been no overpopulation problem during the relevant period of time. They submitted that the prison authority had not provided the inmates with bed linen and that the inmates had been allowed to use their own. In all cells of IVS in Togliatti there existed a functioning ventilation system, hot water radiators, natural and artificial lighting. The average winter temperature was +24oC, whilst in summer it was usually five degrees more than the outside temperature. As regards the applicant’s allegations about the presence of lice and cockroaches, the Centre of Sanitary and Epidemiological Supervision of the town of Togliatti had been in charge of the sanitary situation and there had been no problems or complaints in this respect. According to the Government, all toilets in the cells are separated from the sleeping and living areas by a wall one metre high. The food was supplied by a contractor, OOO “Liliya and Co.”, whilst medical assistance and necessary medicine were available on request.

(ii) Conditions of detention in cells nos. 24, 16 and 22

13. In his observations, the applicant submitted that he had also been detained in cells nos. 24, 16 and 22. The conditions of detention in cells nos. 24, 16 and 22 were identical to those of cell no. 10. He argued that at all relevant times the cells had been heavily overpopulated.

14. In respect of cell no. 24, the applicant submitted that the authorities had failed to provide the inmates with mattresses and bed linen, that the beds had been just metal strips of different width welded to the metal framework and that lying on them had been painful and could be considered as torture in itself. The applicant had to sleep with his clothes on since the windows were covered with multiple bars rather than being glazed and the heating pipe was barely warm. The walls of the cells were covered with ice. The part of the wall near the heating pipe was infested with insects, lice and cockroaches. The food in IVS-1 was given in dirty and greasy aluminium bowls, all black because of their age and dirt. The applicant submitted that it had been disgusting even to look at the food, let alone to eat it. In addition, there was no table or spoon in the cell. The squat toilet was not partitioned from the rest of the cell and the only source of light was a bulb which was situated behind an iron sheet in a deep hole above the door and was never turned off.

15. In respect of cells nos. 10, 16 and 22, the applicant submitted that they had measured from 16 to 18 square metres, that the height of the ceiling had been 2.5 metres, that there had been 5-tier bunk beds with 10 sleeping places in each of the cells, that the cells had literally swarmed with insects, lice and cockroaches, that the applicant’s wife on several occasions had brought various medicines against parasites, that from 12 to 22 persons had been kept in the cell together with the applicant at all times, that because of the lack of space some detainees had slept on their clothes spread on the floor, that despite the fact that in these cells there had indeed been a one metre high wall separating the toilet area from the living area it had offered no privacy, since the entire WC area had been plainly visible, that because of the overpopulation there had always been someone using the toilet and there had constantly been an awful smell in the cells. He submitted that the inmates could take a shower once a week for twenty minutes. However, the applicant found it impossible to wash himself properly because a shower cabin was meant for two inmates but was used by four to five inmates at the same time. In addition, it was impossible to wash clothes in an overcrowded cell, as there was no hot water, laundry detergent or any kind of basin. The lighting was identical to the one in cell no. 24. There were three windows in these cells, unglazed without window frames and covered with several layers of metal bars. It was stiflingly hot in summer (+40 to +50oC) and very cold (+13 to +15oC) in winter.

(iii) The applicant’s submissions in respect of the quality of medical assistance

16. In his observations the applicant also submitted that the medical assistance in IVS had been ineffective and that the prison administration had failed to provide him with “any real help” for his headaches. He admitted that the administration allowed him to use powerful painkillers. The applicant did not allege that any specific type of medical assistance had been denied to him.

(b) Conditions of detention in pre-trial prison IZ-63/2 in the town of Syzran

(i) Conditions of detention in cell no. 89

17. The Government submitted that from 30 December 1999 to 17 January 2000 and from 21 to 25 January 2000 the applicant had been kept in cell 89. According to the Government, the cell measured 7.92 square metres, had a window and 2 sleeping places, with no more than 1 person being held there at the same time as the applicant.

18. The applicant submitted that cell no. 89 had been largely similar to cell no. 24 of IVS-1. Among the slight differences the applicant mentioned that the walls of cell no. 89 had been even, that the window was curtained by a piece of polyethylene. The cell was infested with cockroaches and had a metal table. According to the applicant, a daily outdoor exercise which lasted for one hour was useless since it had been conducted in a space measuring little more than the cell itself. It was slightly lighter in the cell because of a more powerful bulb. The floor surface was concrete. The detainees received bedding, mattresses, a pillow and a blanket which were all in a very shabby condition. The heating in the cell did not work. Initially there were only two detainees in the cell, but four days later they became six. The inmates had to sleep in turn or share the sleeping place. The light never went off. There was an open toilet in the corner which failed to offer any privacy, and no lavatory pan.

(ii) Conditions of detention in cell no. 144

19. According to the Government, during the periods from 4 to 10 February 2000, from 5 to 7 June 2000 and from 17 to 25 August 2000 the applicant was held in cell no. 144. It measured 30.8 square metres and had 2 windows and 7 sleeping places. At all relevant times there were no more than 6 inmates together with the applicant in the cell.

20. In respect of cell no. 144 the applicant submitted that the cell measured 30 square metres. It contained three two-tiered bunk beds designed for 6 alongside one of the walls and a two-tiered construction 5 metres long along the other wall. The construction was covered with metal sheets. According to the applicant, the exact number of sleeping places was a moot point because of uncertainty about the width of the sleeping place. On the assumption that the width was of 50 centimetres, one could reach the overall number of 26 sleeping places. According to the applicant, the cell at all times contained from 40 to 45 detainees. There were two windows, no window frames or panes, and no daylight as the windows were covered with metal blinds from the outside. Lighting came from a 100-150 W bulb which was never turned off. The toilet area was separated but offered no privacy because of its exposure to the living area. The toilet stank and the whole cell was infested with lice, bedbugs and cockroaches. There was a wooden dining table. The kitchenware was dirty and the food was of poor quality.

(iii) Conditions of detention in cell no. 120

21. According to the Government, between 25 and 26 August 2000 the applicant was held in cell no. 120. This cell measured 30.8 square metres, had 2 windows and contained 7 sleeping places, with no more than 6 inmates being held there together with the applicant at all relevant times.

22. The applicant submitted no comments in respect of cell no. 120.

(iv) Conditions of detention in cell no. 74

23. The Government submitted that from 22 February to 19 March 2001 and from 23 March to 9 June 2001 the applicant had been detained in cell no. 74. It measured 7.92 square metres, had a window and contained 2 sleeping places, with no more than one person being held there at the same time as the applicant.

24. The applicant submitted no comments in respect of cell no. 74.

(c) Conditions of the applicant’s detention in pre-trial prison IZ-63/1 in the town of Samara

25. The applicant was transferred to IZ-63/1 on 26 August 2000.

(i) Conditions of detention in cell no. 89

26. According to the Government, between that date and 22 February 2001 the applicant was detained in cell no. 89. The cell measured 11.97 square metres, had one window and contained 3 sleeping places with no more than 2 inmates being detained there along with the applicant at the relevant period of time.

27. According to the applicant, this cell measured some 10 square metres and had 3 two-tiered bunk beds meant for six prisoners. From 5 to 8 detainees were held there along with the applicant during his detention. There was one barred window in the cell. There was a wooden table for four and a toilet separated by a one-metre high partition. The cell was lit with a 40 W bulb.

(ii) Conditions of detention in cell no. 36

28. The Government further submitted that from 11 to 16 June 2001 and from 13 November to 5 December 2001 the applicant had been detained in cell no. 36. The cell measured 34 square metres, had a window and contained 8 sleeping places, with no more than 7 inmates being held along with the applicant.

29. The applicant stated that the cell measured 30 square metres, contained 10 two-tiered beds designed for 20 detainees and a wooden table for ten persons. There were from 18 to 32 detainees in the cell at the relevant time. The prisoners were permitted to do daily outdoor exercises which lasted for 40 minutes. It was cold in the cell in winter (+13oC to +15oC) and stiflingly hot (+30oC to +40oC) in summer.

(d) Conditions of the applicant’s detention in pre-trial prison IZ-77/3 in the city of Moscow

30. Between 16 June and 12 November 2001 the applicant was held in IZ-77/3 in the city of Moscow.

31. The applicant submitted that he had been detained in cell no. 524 measuring 27 square metres and containing 24 bunk beds. During the period between June and November 2001 the cell held from 34 to 48 inmates. It was infected with insects and had neither a separate toilet nor proper ventilation.

32. The Government submitted that the applicant had been detained in cells no. 523 and no. 524. Cell no. 523 measured 35.8 square metres, had 32 sleeping berths and contained no more than 28 persons along with the applicant. Cell no. 524 measured 32.8 square metres, had 32 sleeping places and contained no more than 28 persons along with the applicant. Each of the cells had two windows.

33. The Government submitted hand-written statements of prison inspectors Kh. and L. dated 20 January 2006, in which they had certified that in 2001 there had been no more than 28 persons in cells 523 and 524.

34. According to the applicant these two cells were similar to each other and measured some 27 square metres, with 24 sleeping places each. At all relevant times there were from 32 to 48 inmates in these cells. The prisoners had to sleep in turns. The cells were infested with insects, cockroaches and lice. The applicant admitted that some sanitation works had taken place, but noted that they had been to no avail as the insects from the prisoners’ bedding re-infested the cells each time.

(e) The Government’s factual submissions in respect of all of the above facilities

35. The Government submitted that, except for IVS-1 where the inmates should have used their own bed linen, the inmates in all other prisons had been provided with all necessary bed linen, including a mattress, a blanket, two sheets, a pillow case and a towel.

36. In respect of all prisons, the Government submitted that all prisoners had had a fifteen minute shower every seven days, that all cells had been equipped with day time as well as night time lighting, that there had been a central heating system in the cells, that the accused had been fed in accordance with relevant instructions and rules and had had the possibility of receiving food in parcels from their relatives, that the prisoners had been provided with the medical assistance and had been regularly examined by prison doctors, that the WC area in all prisons had been separated from the living area by a brick wall and that the applicant never complained about the conditions of his detention at the domestic level.

2. The conditions of the applicant’s transportation during his detention on remand

37. The applicant was held in four different detention centres during his detention on remand and had to be transported on several occasions.

(a) Conditions of transportation from IVS-1 to IZ-63/2 and from IZ-63/2 to IZ-63/1

38. In his application form the applicant argued that the journey from IVS-1 to IZ-63/2 had lasted for about three hours. The trip from IZ-63/2 to IZ-63/1 took some five hours. On each occasion the applicant and some sixty to eighty prisoners, all of them with luggage, were put in a truck containing only thirty places.

39. As regards the escort of the suspected and accused persons from IVS to IZ-63/2 of Samara, the Government submitted that it had been carried out by a specialised unit of the Togliatti Town Directorate of the Interior. In 1999 and 2000 the transportation was carried out in GAZ-3307 vehicles with 22 seats and KAMAZ-53202 vehicles containing 30 seats. Each of these vehicles was equipped with two general cells and one solitary cell designed for persons of a special category.

40. In his observations, the applicant also submitted that he had made the trip in such conditions on twelve occasions, that the inmates had been transported in a metal compartment of a KAMAZ vehicle, measuring 20 square metres with a volume of some 26-28 cubic metres, that the compartment had been divided into two parts, each measuring 10 square metres, that there had been 30-35 cm wide benches in each part, designed for transportation of 15 persons, that there had been no windows, heating or toilet in the compartment, that a few holes drilled in the compartment’s body served for ventilation purposes and that there had been 35 to 40 inmates in each part of the compartment on each journey. In addition, almost every inmate had some luggage. According to the applicant, the prisoners were forced into the transport by warders with rubber truncheons and dogs.

(b) Conditions of transportation to the courthouse from IZ-63/1

41. The applicant submitted that he had been taken to the courthouse and back in a GAZ-3307 vehicle. On these days he did not receive hot meals and had no opportunity to take physical exercise. He was transported together with 20 to 30 inmates.

(c) Conditions of transportation from IZ-63/1 in the town of Samara to IZ‑77/3 in the city of Moscow

42. On 16 June 2001 the applicant was taken from IZ-63/1 in the town of Samara to IZ-77/3 in Moscow.

43. In his application form the applicant submitted that he had been taken to Moscow by train. The applicant’s compartment in a special coach was designed for seven persons. During the journey it contained from thirteen to twenty-two prisoners with their luggage.

44. According to the Government, the applicant and other detainees were transported in coach no. 3 of a special “ST” type which could accommodate from 75 to 80 persons. It was equipped with large compartments which could accommodate up to 12 persons and small ones capable of holding up to 5 detainees. The placing of detainees depended on their regime. Since the applicant and ten other detainees were subject to the strict regime of confinement, they occupied a large compartment during the entire journey to Moscow. They also submitted statements by the escorting officers, Mr P., Mr R., Mr Ka., Mr Ku. and Mr L. All of them submitted that there had been 11 inmates including the applicant in the compartment and that none of them had made any complaints during the journey.

45. In his observations the applicant submitted that he had been put into a compartment measuring no more than 3 square metres designed for no more than 7 persons with seventeen other detainees, all with some personal luggage. The journey had lasted one and a half to two days with the average distance of one thousand kilometres. The inmates did not receive any hot meals, only cold water two or three times a day. They were given an opportunity to use the toilet three times a day. There were from thirteen to twenty-two detainees with luggage in the applicant’s compartment during the journey.

3. Statements of the applicant’s fellow prisoners

46. In his observations the applicant submitted a number of statements from his fellow prisoners.

(a) Statements of Mr S.N. Vasilyev

47. In an undated statement Mr S.N. Vasilyev confirmed that he had been detained in cell no. 22 of IVS-1 at the same time as the applicant between 13 July and 17 August 2000. Mr S.N. Vasilyev fully confirmed the applicant’s account of the conditions of detention. He also supported the applicant’s submissions in respect of transportation and conditions in IZ‑63/1 and IZ-63/2.

48. In a statement dated 28 April 2006 Mr S.N. Vasilyev contested the Government’s factual submissions in respect of IZ-63/1 and IZ-63/2. He stated that the Government’s presentation had been wrong and fully confirmed the applicant’s description of cells in IZ-63/1 and IZ-63/2.

49. It appears that at present Mr S.N. Vasilyev is at liberty, living in the town of Togliatti.

(b) Statement of Mr A.V. Bogolyubov

50. In an undated statement Mr A.V. Bogolyubov confirmed that he had been detained in cell no. 22 of IVS at the same time as the applicant from 17 November 1999 onwards. He fully supported the applicant’s factual account of the conditions of detention in this respect. Since Mr A.V. Bogolyubov also spent time in IZ-63/1 and IZ-63/2 (though not at the same time as the applicant), he also supported the applicant’s submission in respect of these two prisons.

51. It appears that Mr A.V. Bogolyubov is at liberty and currently resides in the town of Togliatti.

(c) Statement of Mr S.A. Rassokhin

52. In a statement of 3 March 2006 Mr S.A. Rassokhin confirmed that he had been held in cell no. 10 of IVS-1 between 10 February and 5 May 2000 at the same time as the applicant. Mr S.A. Rassokhin supported all of the applicant’s factual submissions in respect of IVS-1. He also confirmed the applicant’s account of conditions of detention in IZ-63/1 and IZ-63/2 as well as the conditions of transportation.

53. It appears that at present Mr S.A. Rassokhin is at liberty, living in the town of Togliatti.

(d) Statement of Mr S.V. Sidorchuk

54. In a statement of 25 April 2006 Mr S.V. Sidorchuk mentioned that he had been detained in cells nos. 5 and 10 in IVS-1 in 1998 and 1999. He also spent some time in IZ-63/1 and IZ-63/2 and knew the conditions of transportation to and from the above prisons. Mr S.V. Sidorchuk confirmed the applicant’s account of the conditions of detention.

(e) Statement of V.I. Molochkov

55. In a statement of 18 April 2006 Mr V.I. Molochkov supported the applicant’s submissions in so far as they concerned cell no. 36 in IZ-63/1. It appears that Mr Molochkov was detained in that cell in 2001 at the same time as the applicant and there were 20-24 detainees and only 20 beds at that time. Mr Molochkov also mentioned that he had been detained in very similar conditions in IZ-63/2 between 1999 and 2001. Finally, he also confirmed the applicant’s submissions in respect of the conditions of transportation and those in IVS-1.

(f) Collective statement of twenty-one prisoners

56. The following twenty-one prisoners who were serving their sentence in IK-13 along with the applicant also supported his application: Mr A.S. Tikhonov (in respect of both IZ-63/1 and IZ-63/2), Mr V.G. Pamurzin (in respect of IZ-63/1 and IZ-63/2), Mr S.Z. Suleymanov (in respect of IZ-1), Mr V.G. Shalimov (in respect of IZ-63/2 and the conditions of transportation), Mr D.V. Vodopyanov (in respect of the conditions of transportation and the conditions of detention in IZ-63/1), Mr O.V. Tkachenko (all complaints), Mr M. Moiseyev (all complaints), Mr D.N. Kartashov (all complaints), Mr S.N. Smirnov (all complaints), Mr D.I. Karlov (all complaints), Mr A.V. Borodin (in respect of IZ-63/1 in 2001), Mr N.R. Kofinullov (all complaints), Mr V.M. Kapitonov (all complaints), Mr V.S. Kalashnikov (all complaints), Mr A.V. Pronin (all complaints), Mr M.A. Mikhalkin (all complaints), Mr S.V. Sulkin (all complaints), Mr S.S. Kirzhenko (all complaints), Mr S.V. Karyakin (in respect of IZ-63/1), Mr I.I. Maslov (in respect of IZ-63/2), Mr S.V. Ashkhabekov (all complaints).

(g) Statement of Mr V.V. Slivin

57. In a statement of 27 April 2006 Mr V.V. Slivin mentioned that he had spent from 1997 to 2002 in IZ-63/1 in overcrowded cells. According to Mr Slivin the Government’s factual submissions could not reflect the true conditions in IZ-63/1 any earlier than in 2003.

(h) Statement of Mr A.A. Zotov

58. In a statement of 7 May 2006 Mr A.A. Zotov confirmed that in 1998 and 1999 the conditions of detention in IZ-63/1 had been similar to the applicant’s description and that in 2003 some renovation works had been carried out by the prison administration.

(i) Statement of Mr I.V. Katkov

59. In a statement of 12 May 2006 Mr I.V. Katkov mentioned that the prisons in question had suffered from overcrowding both in 2005 and in 2006.

(j) Collective statement by nineteen prisoners from IK-13

60. The applicant submitted an undated statement in support of his application signed by nineteen of his co-detainees from prison IK-13. It appears that they all spent some time in either IZ-63/1 or IZ-63/2 between 1998 and 2003 and that they confirmed that there had been overcrowding there.

4. The Government’s response to these statements

61. In response to the witness statements produced by the applicant, the Government stated that, upon further inquiry, Mr S.V. Sidorchuk, Mr I.V. Katkov, Mr V.V. Slivin and Mr S.N. Vasilyev had admitted that they had never been detained on remand at the same time as the applicant. They further submitted that Mr S.N. Vasiliyev was not even acquainted with the applicant and his signature was different from the one on the submitted statement. It appears that all of the persons mentioned, including Mr S.N. Vasilyev, were the applicant’s fellow prisoners in IK-13. It also appears that the Mr S.N. Vasilyev referred to by the Government is not the Mr S.N. Vasilyev referred to by the applicant.

62. The Government also stated that three persons named Mr S.N. Vasilyev, one Mr A.V. Bogolyubov, one Mr S.A. Rassokhin whom they had been able to find in prisons of the Samara Region had never been detained in the same cell of the same prison of the Samara Region at the same time as the applicant. They also argued that Mr V.I. Molochkov and two persons named Mr Zotov likewise had never been detained in the same cell of the same prison of the Samara Region along with the applicant.

63. The Government submitted a certificate showing that Mr A.V. Bogolyubov had been detained in IZ-63/2 from 29 November 1999 to 14 August 2000, Mr A.A. Zotov from 11 June 2000 to 3 August 2000 (from 31 October 1997 to 27 March 1998 he had also been detained in IZ-63/1) and Mr V.I. Molochkov from 15 March 2000 to 8 December 2000 (from the latter date he had been detained in IZ-63/1); Mr S.A. Rassokhin had been detained in IZ-63/2 from 6 May 2000 to 18 September 2001, one Mr S.N. Vassilyev from 7 February to 20 September 2000 and a different Mr S.N. Vasilyev from 10 November 1998 to 16 April 2001.

64. The Government submitted a statement from Mr S.V. Sidorchuk dated 24 August 2006 in which he had retracted his earlier statements in support of the applicant’s complaints. Likewise, in statements of 24 August 2006 submitted by the Government Mr I.V. Katkov withdrew his support, whilst Mr V.V. Slivin apparently admitted that he had been in IZ-63/1 but retracted his grievances in respect of this prison and withdrew his support for the applicant’s complaints.

65. The Government also submitted statements by police officers, Mr E.I. Mikheyev and Mr A.A. Mishin, in respect of IVS-1 dated 29 August 2006. They both seem to have admitted the problem of over-crowding but noted that it had been due to the fact some prisoners had been counted as being held in IVS-1 whilst in fact they had been kept elsewhere. Otherwise, they confirmed the Government’s account.

5. Alleged interference with the applicant’s right of individual petition

66. By letter of 13 September 2006 the applicant informed the Court that he had learnt that Mr S.V. Sidorchuk and Mr V.V. Slivin, under the authorities’ coercion, had signed a retraction of their previous statements. Among other things, the applicant also submitted a statement in support of his application by Mr A.D. Saidmirzoyev.

67. In the same letter he also alleged that the authorities had put “silent pressure” on him by refusing him access to work corresponding to his skills and preferences, that other prisoners had approached him with disguised threats, that there had been a general tightening of the prison regime “with reference to the applicant’s complaints to the Court” and that the authorities had aimed at creating a social vacuum around the applicant.

68. The Government in their letter of 20 February 2007 gave a very detailed response to the applicant’s complaints and fully denied his allegations, including those concerning the alleged pressure and tightening of prison regime, as unfounded. According to them, no pressure had been put on either Mr Sidorchuk or Mr Slivin.

69. In a statement of 6 February 2007 submitted by the Government Mr Slivin stated that he had never supported the entire application and denied the applicant’s allegation about pressure by the prison administration as unfounded. He also wrote that “all references to him” were “without basis”.

70. In a statement of 6 February 2007 submitted by the Government Mr Sidorchuk mentioned that he had remained a witness in the case, that he had not withdrawn his statement and that no pressure had been put on him by anyone. He added that he had never been detained at the same time as the applicant, so his account of the conditions of detention only concerned himself and not the applicant.

71. The Government further submitted statements dated 6 February 2007 by the applicant’s fellow prisoners Mr V.V. Andreyev, Mr A.V. Ilyin, Mr I.A. Bokurskiy, Mr V.A. Myatlev, and statements from the applicant’s “good friends” Mr A.A. Skachkov, Mr A.S. Kobelev, Mr M.A. Cherantayev, Mr V.V. Gromadskiy and Mr V.E. Litvinov, who all confirmed that no pressure had been put on the applicant during his detention, that there had been no tightening of the prison regime and that at least the applicant had never spoken to them of any.

72. Similar statements were made by a foreman of the applicant’s prison group, Mr A.V. Temkinov, as well as the prison staff, including doctors and medical assistants.

73. On 6 February 2007 the applicant too made a statement to the prison authorities to the effect that no pressure had been put on him since his transfer to prison IK-26 on 23 September 2006.

74. The Government also submitted a statement by Mr Sidorchuk dated 24 August 2006 in which he mentioned that he could only confirm the applicant’s account of the conditions of detention in respect of IZ-63/2 and not as regards IVS-1 and IZ-63/1.

75. In a statement of 24 August 2006 Mr Slivin said that he had been detained in IZ-63/1 from 1997 to 2002, that he personally had had no complaints about the conditions of detention there and that he had promised no support to the applicant. Mr Slivin confirmed that he had given previous support to the applicant only in so far as his own personal experience was concerned.

B. Relevant domestic law

Rules on the prison regime in pre-trial prisons (as approved by Ministry of Justice Decree no. 148 of 12 May 2000)

76. Section 42 of the Rules provided that all suspected and accused inmates had to be given, among other things: a sleeping place; bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow-case; a towel; tableware and covers, including a bowl, a mug and a spoon; seasonal clothes (if an inmate had no clothes of his own).

77. Section 44 stated that cells in pre-trial prison were to be equipped, among other things, with a table and benches with the number of seating places which would correspond to the number of inmates, sanitation facilities, tap water and lamps to provide daytime and night time illumination.

78. Section 46 provided that prisoners were to be given three warm meals a day, in accordance with norms fixed by the Government of Russia.

79. By virtue of Section 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower.

80. Section 143 provided that an inmate could be visited by his lawyer, family or other persons with the written permission of an investigator or an investigative body, the number of visits being limited to two per month.

COMPLAINTS

81. Under Article 3 of the Convention the applicant complained that the conditions of his detention in IVS-1, IZ-63/2, IZ-63/1 and IZ-77/3 and the conditions of his transportation from IZ-63/1 to IZ-77/3, between IVS-1 and IZ-63/2 and from IZ-63/1 to the courthouse had been inhuman and degrading and that he had been tortured at the pre-trial stage of proceedings.

82. The applicant further complained that the authority had failed to notify him of the reasons for his arrest in breach of Article 5 § 2 of the Convention and that his detention had been unlawful and had lasted too long in violation of Article 5 §§ 1 and 3.

83. Under Article 6 of the Convention the applicant also submitted that the proceedings against him had been generally unfair, that the courts had been biased and had infringed his right to the presumption of innocence. He also relied on Article 13 of the Convention and Articles 2 and 4 of Protocol No. 7 in this connection.

84. In the letter dated 13 September 2006 the applicant also complained about the pressure allegedly brought to bear on him and some of his fellow prisoners by the prison authorities in connection with his application to the Court.

THE LAW

85. Under Article 3 of the Convention the applicant complained that the conditions of his detention on remand in temporary detention ward IVS-1 and pre-trial detention centres IZ-63/2, IZ-63/1 and IZ-77/3 and the conditions of his transportation from IZ-63/1 to IZ-77/3, between IVS-1 and IZ-63/2 as well as from IZ-63/1 to the courthouse had been inhuman and degrading. Article 3 provides as follows:

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

A. Submissions of the parties

86. The Government submitted that the complaints in respect of IVS-1 and IZ-63/2 had been lodged out of time. The Government also informed the Court that most of the documents in connection with the applicant’s detention in IVS-1 had been destroyed because of expiry of the statutory time-limit. In any event, they argued that the conditions in these two prisons had been satisfactory and not in breach of Article 3 of the Convention. In addition, they argued that the applicant had not made any complaints in this connection to the domestic authorities and therefore failed to exhaust. According to the Government, the complaints in respect of pre-trial detention centre IZ-63/1 and IZ-77/3 too were inadmissible because of the applicant’s failure to exhaust and referred to the facts of the case of Novoselov v. Russia (no. 66460/01, 2 June 2005). In particular, the applicant ought to have complained to the prison administration and “the State agencies of the Russian Federation”, such as the prosecutors’ offices or courts. As regards IZ-63/1, the Government considered that the conditions of detention in that prison had not been incompatible with Article 3 of the Convention. As regards IZ-77/3, they seemed to have admitted the existence of overcrowding, but argued that the problem resulted from objective factors, such as the high crime rate and the limited capacity of the detention facilities. In their view, the mere fact of holding the applicant in an overcrowded cell, provided that all other conditions of detention were observed, was not incompatible with Article 3. They also challenged the statements of the applicant’s former inmates as erroneous. The Government submitted factual information concerning the applicant’s conditions of transportation but failed to present any legal comments in this connection.

87. The applicant disagreed and maintained his complaints. He submitted that for the purposes of calculation of the six-month time-limit his entire detention on remand should be regarded as a continuing situation. He also argued that the data and figures provided by the Government were inaccurate. All his complaints about the conditions of detention had been to no avail, and in any event the domestic legal system provided for no effective remedy in respect of this problem. The applicant disagreed with the Government’s factual descriptions of his conditions of transportation and maintained his complaints.

B. The Court’s assessment

88. The Court notes that the Government entered a plea of non-exhaustion in respect of this part of the application and an objection concerning the applicant’s failure to comply with the six-month time-limit as regards the conditions of detention in IVS-1 and IZ-63/2. The Court will examine these arguments in turn.

1. The applicant’s compliance with the exhaustion requirement

89. Inasmuch as the Government claim that the applicant has not complied with the rule of exhaustion of domestic remedies, the Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI).

90. The Court observes that the Government noted that the applicant had not lodged any complaints concerning the conditions of detention in pre-trial detention centre IZ-63/1 and IZ-77/3 with the domestic authorities and generally referred to the facts of the judgment of Novoselov v. Russia (cited above, §§ 26-28) in which the applicant, after having served his sentence of imprisonment, had tried to claim damages for “inhuman and degrading” conditions of detention in facility no. 18/3 from the Treasury of the Russian Federation but had been ultimately unsuccessful.

91. The Court finds that the Government did not specify with sufficient clarity the type of petition which would have been an effective remedy in their view, nor did they provide any further information as to how such a petition could have prevented the alleged violation or its continuation or provided the applicant with adequate redress. As regards the Government’s general reference to the claim for damages filed by the applicant in the above-mentioned Novoselov case, the Court finds nothing in their submissions to demonstrate that this claim would have had any prospects of success in the applicant’s individual situation, especially given that the applicant in the Novoselov case was ultimately unsuccessful. Even if the applicant, who at the relevant time was still being held in detention on remand, had been successful, it is totally unclear how the claim for damages could have afforded him an immediate and effective redress. In the absence of such evidence and having regard to the above-mentioned principles, the Court finds that the Government did not substantiate their claim that the remedy or remedies the applicant had allegedly failed to exhaust were effective ones (see, among other authorities, Kranz v. Poland, no. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

92. For the above reasons, the Court finds that this part of the application cannot be rejected for non-exhaustion of domestic remedies (see also Popov v. Russia, no. 26853/04, §§ 204-06, 13 July 2006; Mamedova v. Russia, no. 7064/05, §§ 55-58, 1 June 2006; and Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001‑XI (extracts)).

2. The applicant’s compliance with the six-month time-limit

(a) General principles

93. The Court recalls that the object of the six-month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past events and decisions are not continually open to challenge. The rule also affords the prospective applicant a time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1534, at p. 1547, §§ 32-33). In cases where there is a continuing situation, the six month period runs from the cessation of the situation (B. and D. v. the United Kingdom, no. 9303/81, Commission decision of 13 October 1986, Decisions and Reports (DR) 49, p. 44). The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim (see Montion v. France, no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227; and Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108). Normally, the six month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26 June 2001).

(b) Application of those principles

94. Despite the fact that the Government only raised this argument in respect of IVS-1 and IZ-63/2, the Court observes that it has previously held that it cannot set aside the application of the six-month rule solely because a government has not made a preliminary objection to that effect (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I, and, more recently, Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑...) and therefore finds it necessary to examine the compliance with the six-month rule in connection with the complaints about all pre-trial detention centres referred to by the applicant as well as the conditions of his transportation.

(i) Complaints about the conditions of detention

(α) Schedule of the applicant’s detention on remand

95. The Court notes that the parties did not dispute that the applicant was detained in temporary detention ward IVS-1 in the town of Togliatti on six occasions (from 22 December to 30 December 1999, from 17 to 21 January 2000, from 25 January 2000 to 2 February 2000, from 10 February 2000 to 5 June 2000, from 7 June to 17 August 2000 and from 19 to 23 March 2001). These periods alternated with the applicant’s detention in pre-trial detention centre IZ-63/2 in the town of Syzran and IZ-63/1 in the town of Samara: on seven occasions the applicant was detained in the former (from 30 December 1999 to 17 January 2000, from 21 to 25 January 2000, from 2 to 10 February 2000, from 5 to 7 June 2000, from 17 to 26 August 2000, from 22 February 2001 to 19 March 2001 and from 23 March 2001 to 9 June 2001) and on three in the latter (from 26 August 2000 to 22 February 2001, from 11 to 16 June 2001, from 13 November to 5 December 2001). Towards the end of his detention on remand, between 16 June and 13 November 2001, the applicant was also held in IZ-77/3 in the city of Moscow. On 5 December 2001 the applicant was transferred to serve his sentence of imprisonment in facility IK-13 in the Khabarovsk Region.

(β) Temporary detention ward IVS-1 and pre-trial detention facility IZ-63/2

96. As regards the complaints about IVS-1 and IZ-63/2, the applicant’s detention in these facilities ended on the respective dates of 23 March 2001 and 9 June 2001, whereas the application was not introduced to the Court until 21 February 2002, which is more than six months later (see, for example, Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004). Contrary to the applicant’s assertion, the Court does not find any special circumstances which would enable it to construe the applicant’s detention in those facilities and subsequent detention centres IZ-63/1 and IZ-77/3 as a “continuing situation” which could bring the events complained of by the applicant within the Court’s competence. In particular, all facilities, both IVS-1, IZ-63/2 and the subsequent ones, were situated in different buildings located in different places, the applicant’s detention in these facilities ended on clearly identifiable dates and nothing in the parties’ submissions suggests that the measurements of the applicant’s cells, the cell layouts or any other relevant characteristics were identical or remarkably similar (see, by contrast, Igor Ivanov v. Russia, no. 34000/02, § 30, 7 June 2007). It follows that the complaints in respect of IVS-1 and IZ-63/2 were introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

(γ) Pre-trial detention facilities IZ-63/1 and IZ-77/3

97. The Court notes that the applicant was detained in IZ-63/1 initially between 26 August 2000 and 22 February 2001 and then, after the stay in IZ-63/2 and IVS-1, on two occasions from 11 to 16 June 2001 and from 13 November to 5 December 2001. Between 16 June and 13 November 2001 the applicant was held in IZ-77/3.

98. As regards the applicant’s first period of detention in IZ-63/1 between 26 August 2000 and 22 February 2001, the Court notes that it was interrupted on 22 February 2001 by his transfer to IZ-63/2, whereas the complaint about that period was not introduced until 21 February 2002, which is more than six months later. In view of its lack of competence to consider the subsequent periods of detention (see above in respect of IZ‑63/2 and IVS-1), the Court considers that for the purposes of the complaint about the applicant’s first stay in IZ-63/1 the six months had expired by the latter date. It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

99. As to the remainder of the applicant’s grievances in respect of IZ‑63/1 and IZ-77/3, the Court first notes that the complaint about the applicant’s detention in IZ-77/3 between 16 June and 13 November 2001 relates to a set of uninterrupted events which took place in the same prison during 4 months and 28 days and it therefore falls within its competence entirely (see, for example, Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). In view of this finding and since the parties did not dispute that from 11 to 16 June 2001 and from 13 November to 5 December 2001, which is immediately before and after his transfer to IZ-77/3, the applicant was detained in the same cell of facility IZ-63/1 and there is nothing in the case-file to suggest that the regime or the general conditions of his detention on these two occasions were not identical or at least substantially similar, the Court finds that the interval stretching from 11 June 2001 to 5 December 2001 should be regarded as a “continuing situation” for the purposes of calculation of the six-month time-limit. It thus finds that the applicant lodged his complaints about the conditions of detention in IZ-63/1 (from 11 to 16 June 2001 and from 13 November to 5 December 2001) and in IZ‑77/3 (between 16 June and 13 November 2001) in good time.

(ii) Complaints about the conditions of transportation

100. The Court observes that the applicant made specific complaints about the conditions of his transportation from IZ-63/1 to IZ-77/3, between IVS-1 and IZ-63/2 and from IZ-63/1 to the courthouse. In this respect, it should be noted that the latest journey from IZ-63/1 to IZ-77/3 was made by the applicant on 16 June 2001, the latest journey between IVS-1 and IZ-63/2 on 23 March 2001 and the latest journey from IZ-63/1 to the courthouse on 1 November 2000, which is the date of the applicant’s first instance conviction. The Court further notes that the complaints in this connection were not introduced until 21 February 2002, that is more than six months later. It follows that this part of the application was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

(c) Conclusion as to compliance with the six-month rule

101. The Court considers, taking into account that the application was lodged on 21 February 2002, that the applicant has complied with the six-month time-limit prescribed by Article 35 § 1 of the Convention only in respect of his complaints concerning the conditions of his detention in IZ‑63/1 (from 11 to 16 June 2001 and from 13 November to 5 December 2001) and IZ-77/3 (between 16 June and 13 November 2001).

102. In the light of the parties’ submissions, the Court finds that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

103. Relying on Article 3 of the Convention, the applicant also complained that he had been subjected to torture at the pre-trial stage of proceedings.

104. The Court notes that the applicant failed to specify the relevant circumstances of the purported ill-treatment, including its date or dates. In any event, it allegedly took place prior to the applicant’s conviction at first instance on 1 November 2000, whereas the application form was lodged with the Court on 22 February 2002, which is more than six months later.

105. Accordingly, this part of the application was introduced too late and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

106. Under Article 5 of the Convention the applicant complained of various irregularities in his pre-trial detention and of its length. This provision, in so far as relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

...”

107. The Court considers that the date of the “final decision” for the purpose of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is the date on which the charge is determined by a court at first instance, not the date on which a conviction becomes effective (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). The applicant was convicted at first instance on 1 November 2000 and, consequently, the six-month time-limit under Article 35 § 1 concerning this part of the application started running on that date. However, the application was not introduced until 21 February 2002, which is more than six months later. The Court therefore finds that the applicant failed to comply with the six-month time-limit laid down in Article 35 § 1 of the Convention.

108. It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

109. The applicant also complained that the criminal proceedings against him had been unfair and in breach of the presumption of innocence. He also complained that the courts had been biased. He relied on Articles 6 and 13 of the Convention and Articles 2 and 4 of Protocol No. 7 in this connection. The Court will examine this part of the application under Article 6 of the Convention, which in its relevant parts provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

110. As to the applicant’s complaint about the breach of the presumption of innocence and the courts’ bias, the Court finds that the applicant has not sufficiently made out his case. In so far as the applicant is dissatisfied with the unsuccessful outcome of the proceedings in his case, the Court observes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that he, personally and through his defence counsel, was fully able to present his case and contest the evidence that he considered false. Having regard to the facts as submitted by the applicant the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

111. Finally, in his letter of 13 September 2006 the applicant complained that the prison authority had put pressure on him and some of his fellow prisoners in connection with his application to the Court. The Court will examine this complaint under Article 34 of the Convention, which in its relevant parts, provides as follows:

“... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A. The parties’ submissions

112. The Government disagreed with the applicant’s allegations and produced statements from his fellow prisoners to the contrary. They also denied any coercion by the prison authority.

113. The applicant disagreed and maintained his complaints.

B. The Court’s assessment

114. In the light of the parties’ submissions, the Court finds that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the conditions of his detention in IZ-63/1 (from 11 to 16 June 2001 and from 13 November to 5 December 2001) and IZ‑77/3 (between 16 June and 13 November 2001) under Article 3 of the Convention and the applicant’s alleged coercion by the prison authorities under Article 34 of the Convention;

Declares inadmissible the remainder of the application.

Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident

Full & Egal Universal Law Academy