TREPASHKIN v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36898/03
by Mikhail Ivanovich TREPASHKIN
against Russia

The European Court of Human Rights (First Section), sitting on
15 September 2005 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler, judges,
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 14 November 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

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

The applicant, Mr Mikhail Ivanovich Trepashkin, is a Russian national, who was born in 1957 and lives in Moscow. He is represented before the Court by Ms Ye. Liptser, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Detention on remand

(a) Arrest

The applicant is a lawyer and a former officer of the Federal Security Service of the Russian Federation (FSB). At the time of the events giving rise to the application, he was a subject of an unrelated criminal investigation conducted by the Chief Military Prosecutor and concerning the period of his service in the FSB (criminal case no. 1). Since March 2003 the applicant was under an obligation not to leave his permanent place of residence without permission of the prosecution or the court.

On 22 October 2003 the applicant was returning from a meeting with the officials of the police department of the Dmitrov town, Moscow Region, where he was assisting his client. At 4:30 p.m. the applicant’s car was stopped by the traffic police on a road. The police searched his car, nothing suspicious being discovered there. Few minutes later the policemen repeated the search, now in the presence of two attesting witnesses. This time a handgun with ammunition was discovered on the back-seat of the applicant’s car. The applicant was questioned about this gun; he asserted that it did not belong to him. He also informed the policemen that he was a lawyer and showed his advocate’s identity card. At about 7 p.m. the police opened a criminal investigation into these facts (criminal case no. 2). The applicant was placed in the detention centre of the Dmitrov town.

(b) First detention order

In the morning of 24 October 2003, upon the investigator’s request, the Dmitrov Town Court ordered the applicant’s detention on the ground that he was suspected of committing a criminal offence punishable under Article 222 of the Criminal Code (unlawful possession of firearms and ammunition) by up to six years’ imprisonment, on the grounds that he might abscond, interfere with the course of justice or continue his criminal activities. The court also stated that at the time of his arrest the applicant was already subject to another criminal investigation in the context of criminal case no. 1.

The applicant appealed, stating, inter alia, that the Town Court, in finding the detention lawful, had failed to give any reasons for its finding. The applicant further alleged that the gun had been planted by the police and maintained that he would never keep a loaded gun in a car which he used to drive his children to school every morning. He also noted that he had five underage children and, therefore, there was no reason to believe that he would go into hiding. He further submitted that he represented clients in forty pending cases and that his arrest would be prejudicial for the interest of his clients. Finally, the applicant pointed out that the special procedure for sanctioning the detention of lawyers had not been followed in his case. He asked the Regional Court to examine his appeal in his presence.

On 27 October 2003 the Dmitrov Town Court, after a preliminary examination of the facts of the case, authorised the opening of criminal proceedings against the applicant with respect to the gun discovered in his car on 22 October 2003. On the same day the applicant’s lawyer lodged an appeal against the detention order of 24 October 2003. In the points of appeal he stated, inter alia, that the applicant, as a lawyer, could not have been arrested and then placed in custody without a preliminary court decision authorising criminal prosecution in his respect.

On 31 October the applicant was formally charged under Article 222 § 1 of the Criminal Code.

On 31 October 2003 the Moscow Regional Court examined the appeal against the detention order. Before the court the applicant was represented by one of his lawyers, Mr M. With reference to Articles 447 - 450 of the Code of Criminal Procedure, the Regional Court quashed the detention order of 24 October 2003. The appeal court stated that the applicant, as a lawyer, could have been placed in detention on remand only after a separate court decision initiating criminal proceedings against him or authorising investigative actions in his respect. In the present case there had been no such decision when the court ordered his detention. The appeal court ordered the applicant’s release and remitted the case to the first instance court. However, the applicant remained in prison. He submitted that he had received a copy of this decision only on 11 November 2003.

On 31 October 2003, within the framework of criminal case no. 2, the applicant was formally charged with committing a criminal offence under Article 222 § 1 of the Criminal Code of the Russian Federation.

On 4 November 2003 the applicant was transferred to the detention centre of Volokolamsk. On the same day the prosecutor of the Dmitrov town lodged a motion before the Dmitrov Town Court asking to order the applicant’s detention on remand.

(c) Second detention order

On 5 November 2003 the Dmitrov Town Court ordered the applicant’s detention anew on the ground that the applicant had been charged with a crime of medium severity and that he might abscond or interfere with the course of justice if released. The hearing took place in presence of the applicant and two of his lawyers – Mr G. and Mr M. On the same day he was transferred back to the detention centre in Dmitrov.

The applicant appealed, repeating the arguments used during his first appeal and adding that, once refused, detention on remand cannot be applied for a second time on the same grounds. The applicant also submitted that neither he nor one of his lawyers, Mrs L., had been notified about the hearing and, therefore, had been unable to present their arguments. He also indicated that the decision of the Moscow Regional Court of 31 October 2003 ordering his release remained unexecuted.

On 13 November 2003 the Moscow Regional Court, in presence of the applicant’s lawyers, upheld the first instance court decision of 5 November 2003 and sanctioned the applicant’s further detention on remand pending pre-trial investigation.

By the end of November the bill of indictment within criminal case no. 1 together with the case-file was forwarded to the Military Court of the Moscow Circuit. On 1 December 2003 the applicant was transferred to a detention centre in Moscow. On the same day the Military Court of the Moscow Circuit ordered the applicant’s detention in custody within criminal case no. 1.

On 19 December 2003 the Dmitrov Town Court dismissed the investigator’s request for prolongation of the applicant’s detention on remand within criminal case no. 2. However, the applicant remained in custody pursuant to the detention order issued by the Military Court of the Moscow Circuit of 1 December 2003.

On 14 January 2004 the defence complained to the Dmitrov Town Court about the period between 31 October and 5 November 2003, when the applicant was detained without any valid ground. It is unclear whether this complaint has ever been examined by the court and what were the results of the examination, if any.

2. Outcome of the criminal proceedings against the applicant

On 19 May 2004 the Military Court of the Moscow Circuit pronounced judgment in the criminal case no. 1. The applicant was found guilty and the court sentenced the applicant to four years’ imprisonment in an open colony (колония-поселение). On 9 September 2004 the Military Chamber of the Supreme Court of the Russian Federation upheld the judgment.

As regards criminal case no. 2, on 15 April 2005 the Dmitrov Town Court found the applicant guilty of unlawful possession of firearms, found in his car on 22 October 2003. The applicant appealed. On 1 July 2005 the Moscow Regional Court acquitted the applicant.

3. Conditions of detention

After his arrest on 22 October 2003 the applicant was placed to the detention centre in Dmitrov (изолятор временного содержания УВД г. Дмитров), about 70 km north of Moscow. On three occasions in the following five weeks the applicant was transferred to the detention centre ИЗ 50/2, situated in Volokolamsk, about 130 kilometres west of Moscow, and then back to the detention centre in Dmitrov. According to the information provided by the Government, the applicant was kept in custody in the detention centre of Dmitrov from 22 October until 4 November 2003, then from 5 until 10 November, and from 14 until 21 November 2003. The Government further asserted that the applicant had been kept in custody in the detention centre of Volokolamsk from 4 until 5 November, from 10 until 14 November and from 21 until 28 November 2003. The Government did not indicate where the applicant was detained between 28 November and 1 December 2003, when he was transferred to the detention centre ИЗ 77/1 in Moscow. According to the applicant, during these three days he was in the detention centre of Volokolamsk.

The parties present different account of conditions of detention in the detention centres of Moscow and Volokolamsk.

(a) Conditions in the detention centre of Dmitrov

In his initial submissions to the Court the applicant described conditions in the detention centre of Dmitrov as follows:

“The cell had a dirty wooden floor with puddles of mud ..., insects were everywhere, it was terribly chilly. I was not given a mattress or a chair or even a piece of paper. I had to rest on the wooden floor which was covered in faeces and the blood of crushed bugs. ... Because of the cold I had to remain standing for two days - I could not sleep. Then I cleaned up a place in a corner of the cell with my clothes and took a nap. 30 minutes later I woke up because bugs, lice and some other beasts were crawling over me. ... Since my arrest I have not been able to go for a walk outside the cell. The window is constantly shut and I’ve lost all feeling of time. Only once was I brought before an investigator for questioning. ... There is no wash basin in the cell and I have to wash myself using the lavatory. ... My eyesight has become impaired because of the dull light in the cell.”

The applicant complained to the prosecutor about the conditions of his detention. As a result, he was given a pail of water, washing liquid and a rag to wash the floor.

i. Government’s submissions

According to the information, provided by the Government, the cell no. 7, where the applicant was detained, measures 6.6 square meters. It is equipped with lavatory, a tap and a sink. The premises of the detention centre are centrally heated. The cell is day-lighted during the day and lighted with an electric lamp in the night. Upon his arrival to the detention centre the applicant was given bed-clothes; however, he refused to use it “in sign of his disagreement with his arrest”. In the evening of 23 October 2003 his relatives transmitted to him necessary bed-clothes.

On 2 December 2003 the Dmitrov town detention centre was examined by a mixed commission of the regional Department of Interior and the Department of Sanitary Control. The inspection concluded that “sanitary state of the cells is satisfactory, wet cleaning with disinfection chemicals takes place every day; ventilation is operational”. The commission also noted that the applicant was not taken out for a walk because the yard in the detention centre was under construction.

ii. Applicant’s submissions

In his submissions in reply to those of the Government the applicant insisted that the cell no. 7, where he was detained, was smaller than the Government indicated and, moreover, was not equipped with a wash basin. The water from the tap was evacuated through a lavatory drain (труба слива для унитаза), so, to wash himself, the applicant had to incline over a stinking toilet pan. The pan was located very close to the applicant’s sleeping place, and there was no partition-wall between them. The cell had no radiators or other heating devices; instead, a pipe with warm water passed along the wall. In the applicant’s words, this pipe could provide heat enough only for warming his hands on it.

The applicant further indicated that there had been only one small grilled window in the cell, and there had been no glass in it. In order to keep warmth in the cell, the grill covering the window was papered over. The applicant did not dare to take the paper off because it was too cold outside. So, there was no natural light in the cell: during the whole period of his detention in Dmitrov the applicant had to read and write by the dull light of an electric lamp. As a result, the applicant’s eyesight deteriorated.

On 7 November 2003 the applicant complained to the investigator about the absence of any natural light in his cell. The applicant asked to order his examination by an ophthalmologist, but it was refused. Instead, the head of the detention centre recommended the applicant to take “blackberry pills” which could be procured by his relatives. The applicant indicated that in May 2004 he had passed an examination by a doctor in the detention centre ИЗ 77/1, which revealed the impairment of his eyesight by 0,5 dioptre.

On 10 November 2003 the applicant wrote a new complaint to the investigator. He asserted that over 19 days of his detention he was not taken out of his cell for an outdoor exercise. As a result, his asthma had deteriorated, and he had to use his inhalation spray six times a day, whereas in principle it should not be used more than twice a day.

As regards living essentials, the applicant insisted that the detention centre was not equipped with any bed-clothes, mattresses or pillows. The Government’s assertion that the applicant refused to take the bed-clothes “in sign of his disagreement with his arrest” he qualified as a blatant lie. In the applicant’s words, if a detainee refuses to take some objects of personal use provided by the detention centre, this fact is always recorded in a special register. He insisted that after his arrest he had not been provided with any bedding at all. Moreover, on 23 October 2003 the police investigator Mr Z. confiscated all his clothes; the applicant was left in the unheated cell in his underwear. Only in the evening of 23 October 2003 the applicant’s wife managed to transmit him through the head of the detention centre, Mr Y., a pillow, two blankets and a jogging suit.

The applicant maintained his initial submissions that the cell no. 7 had been full of parasites. The inspection of this cell, referred to by the Government, took place on 2 December 2003, that was more than a month after the applicant had been placed there, and ten days after he left this detention centre. Consequently, this inspection could not reveal the real situation existing at the moment of the applicant’s arrest and detention. In support to his words the applicant referred to an article, published in the daily newspaper “Kommersant” shortly after his arrest. In this article the applicant’s lawyer, Mr G., testified that in the morning of 22 October 2003 he had visited his client (the applicant) in the detention centre of Dmitrov. Mr G. said to a journalist: “In a night [the applicant] got lice and some other insects, which crawled over him while we were talking. The cell where he is detained is so dirty that he cannot even sit there”.

(b) Conditions in the detention centre of Volokolamsk

In his initial submissions to the Court the applicant described conditions of his detention there as follows:

“In a cell measuring 18 square metres I’m detained with 20 other people, including one mentally ill person (schizophrenic). There is not enough space for sleeping and two persons have to sleep on the same bed. There are bugs, lice and cockroaches in the cell. The facility for walking is very small. 20 people can scarcely get in it, and it is impossible to breathe normally even during the walk because others are constantly smoking. I have bronchial asthma of medium severity and it has lately worsened. I have very severe chest pains. I wrote a request for a medical examination to the investigator Sh., but he did not reply. The investigator also rejected my request for an eyesight examination. Because of the shortage of spoons and mugs we have to use them in turns. I still cannot obtain from the administration a spoon, a mug, and a bowl for my own use, nor a bed sheet, a pillow-case or a blanket.”

On 1 December 2003 the applicant wrote a letter to the Ministry of Justice where he described conditions in the detention centres of Dmitrov and Volokolamsk. He repeated his complaints about the overcrowding in the cell and lack of living essentials available for the detainees. In his submissions, on certain days the number of detainees amounted to 25 people, and they had to sleep by turn. The detainees were sleeping on four-stacked metal shelves, very short and uncomfortable. The mattress he was provided with, looked like a filthy rag, with stains of urine. The wadding inside the matress became so matted that it felt like sleeping on a pile of stones. Although the cell was full of lice, the administration did not provide the detainees with insecticides and prohibited their use in the cell. He was afraid of being infected by an insect-born disease. In this letter he also complained about his detention without any legal ground between 31 October and 5 November 2003.

He also complained that on several occasions in the course of the transportation to another detention centre or the court he was placed in a very small room (70 x 120 cm) without light, water or food. He was kept in this room for up to eight hours, without being able to stretch his legs while sitting. This room was not equipped with a lavatory, and, due to the understaffing of the detention centre, it happened that the applicant had to wait two hours to be conveyed to the toilets.

i. Government’s submissions

According to the information, provided by the Government, upon his arrival to the detention centre ИЗ 50/2 the applicant was examined by a doctor. The Government produced a medical certificate, issued by the prison administration, which stated that “after a visual examination no signs of bronchial asthma were detected”. According to this certificate, the applicant had no asthmatic attacks during his detention and his eyesight did not deteriorate.

In the detention centre of Volokolamsk the applicant was placed in cell no. 101, measuring 20 square meters and allocated for former officials of State law-enforcement agencies. This cell was equipped with lavatory, a shelf for storing food-stuff, and a sink with hot and cold tap water. During the applicant’s detention the number of his cell-mates varied from 14 to 20. On 20 November 2003 the administration of the detention centre ИЗ 50/2 carried out an inspection of this cell. The administration concluded that “the sanitary state of the cell is in accordance with established standards, canalisations and water supply are operational, syanthropic arthopods are not detected.”

The Government further indicated that the applicant was provided with all living essentials. In support of these words the Government produced a special register where the administration of the detention centre recorded objects given to detainees. According to this register, on 5 November 2003 (the day of his first transfer to the detention centre in Volokolamsk) the applicant received a matress, a pillow, a blanket, a pillow-case, two bed-sheets, a bowl, a spoon and a mug. On 10 November 2003, when the applicant was transferred to the detention centre in Volokolamsk again, the applicant received the same objects. He returned them to the administration on 14 November 2003.

ii. Applicant’s submissions

The applicant produced medical certificate no. 1259 delivered on
2 June 2000 by the Central Military Medical Commission. Pursuant to this document, the applicant had suffered from bronchial asthma of medium severity and had normal visual acuity. According to the applicant, upon his arrival to the detention centre in Volokolamsk he was questioned by a doctor about his medical history. The applicant complained of asthmatic attacks and impairment of his eyesight; in reply the doctor said that he had no appropriate medication for treating asthma and that the applicant’s relatives should take care of procuring it. In his words, the only examination he passed was a fluorography, and in those circumstances it was little wonder that the doctor detected no signs of bronchial asthma.

In the following days the applicant repeated his request to be examined by an ophthalmologist, but received no reply. The applicant broke his tooth, because in the detention centre he was given only stale rye bread; he sought to see a dentist, but to no avail. Moreover, the administration refused the applicant to be examined by a doctor, invited by the NGO “For Human Rights”.

As regards conditions in cell no. 101, where he was detained, the applicant challenged the account given by the Government. In his submissions, the cell measured about 16 – 18 square meters and contained up to 25 people, and never less than 22. The applicant named his cell-mates who could confirm this fact. The cell has no shelves: instead, four sleeping places were used for storage of food and personal belongings of the detainees, their clothes, shoes etc. Hot water was available only occasionally, and for very short periods of time, so the detainees had time only to wash crockery, underwear and bed-clothes. There was no place to dry the linen, so the applicant had to sleep on wet bed-sheets. “The lavatory” mentioned by the Government was in fact a hole in the floor of the cell, which was not separated from the living space, so the odour of the faeces was very disturbing. After having used the toilet the inmates had to burn a piece of paper – the smoke attenuated the putrescent scent of faeces, but, at the same time, caused severe headache to the applicant. The distance between the table at which the detainees eat and the “lavatory” was no more than 1,5 meters, and the washing basin was located just above it. The applicant acknowledged that on 20 October 2003 the cell had been disinfected; however, on 4 November 2003, when he was placed there, it was full of lice and fleas again. Apparently the parasites in the mattresses and bed-clothes escaped the desinsection. During his detention in Volokolamsk, the cell has not been cleaned a single time.

Upon his arrival to the detention centre in Volokolamsk, the applicant received a mattress and a bed-sheet. In his words, the mattresses given to the newly arrived inmates were not cleaned, even if their previous owners suffered from tuberculosis or other contagious disease. The applicant was not provided with a bowl, mug or a spoon – the administration promised him to give the crockery as soon as it would be available. He insisted that his signatures in the register, produced by the Government, were forged and that he had never received any crockery from the administration. Moreover, the register contain no information about the third period of the applicant’s detention in Volokolamsk, namely between 21 and 1 December 2003, so, there is no proof that the applicant was provided with any living essentials at all during this period.

As regards conditions and timing of transportation to this detention centre, the applicant insisted that its administration had distorted the facts. Thus, according to the prison administration, on 10 October 2003 he arrived to the detention centre in Volokolamsk at about 2 p.m. In fact he arrived there at about 9 a.m. and spent 8 hours in a humid concrete-made room, without food or light. The same occurred on 21 November 2003.Relevant domestic law

The offence in criminal case no. 2

Pursuant to Article 222 of the Criminal Code, illegal acquisition, transfer, sale, storage, transportation, or bearing of firearms, its basic parts, ammunition, explosives, or explosive device shall be punishable by restraint of liberty for a term of two to four years, or by arrest for a term of up to six months, or by deprivation of liberty for a term of up to three years, with a fine in the amount of 200 to 500 minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for a period of two to five months, or without any fine (§ 1). The same acts committed by a group of persons in a preliminary conspiracy, or repeatedly, shall be punishable by deprivation of liberty for a term of two to six years (§ 2).

General rules on pre-trial detention

Pursuant to Article 91 (“Grounds for Apprehending Suspect”) of the Criminal Procedure Code, the police may apprehend a person suspected of having committed an offence punishable by imprisonment, if the person is caught in the act of or immediately after committing the offence.

Pursuant to Article 94 (“Grounds for Releasing Suspect”), within forty-eight hours from the time of the apprehension, a suspect shall be released if a measure of restraint in the form of custody has not been imposed on the person or a final decision has not been deferred by a court under Article 108 (paragraph 6, subparagraph 3) of the Code. When imposition of custody as a measure of restraint is deemed to be necessary, an appropriate motion shall be filed with a district court by a prosecutor or by an investigator or inquiry officer subject to a prosecutor’s consent.

Pursuant to Article 108 (“Taking into Custody”), taking into custody as a measure of restraint shall be imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding two years, if it is impossible to use a different, milder measure of restraint.

If a judge’s ruling to take the suspect into custody as a measure of restraint or to extend the custody period does not arrive within forty-eight hours from the moment of the apprehension, the suspect shall be released immediately, and the head of the custody facility in which the suspect is held shall notify the inquiry agency or the investigator in charge of the proceedings in the criminal case and the procurator about such release. If a court finding or ruling exists that denies an investigator’s motion to order a measure of restraint in the form of custody for a suspect, a copy of that ruling shall be provided to the suspect when he is released.

Pursuant to Article 97 (Grounds for Imposing Measure of Restraint) a court is empowered to impose a measure of restraint (i.e. custody) on the suspect, provided there are sufficient reasons to believe that the suspect (1) will flee during the inquiry, pre-trial investigation, or trial, (2) may continue to engage in criminal activities, (3) may threaten a witness or other participants in the criminal procedure, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case.

Pursuant to Article 98, (“Circumstances to Be Considered in Imposing Measure of Restraint”), the circumstances to be taken into account when imposing the measure of restraint include, apart from those specified in Article 97 of the Code, the seriousness of the charges brought and the defendant’s personality, age, health, family status, occupation and other circumstances. The judge’s ruling is to be forwarded to the person who has filed the motion, the procurator, and the defendant (suspect), to be executed immediately. Pursuant to Article 108, a second motion to take a person into custody in the same criminal case after one such motion has been denied by a judge’s ruling may only be filed with the court if new circumstances emerge that justify the need to take the person into custody.

A judge’s ruling to take or not to take a person into custody may be appealed to a higher court within three days from the date on which the ruling was given. A judge of the appeal instance (кассационная инстанция) shall render a decision on such complaint or representation within three days from the date of receipt thereof.

Special rules with respect to the advocates

Pursuant to Article 447 of the Code, a special procedure should be applied in criminal cases with respect to advocates. Pursuant to Article 448 (“Initiation of Criminal Proceedings”), a prosecutor shall take the decision to initiate criminal case against a lawyer. This decision is subject to approval by a judge. Pursuant to Article 450 § 5 (“Special Features of Imposing Measure of Restraint and Conduct of Individual Investigative Actions”), if there was no court decision authorising the criminal prosecution of a lawyer, the court should give its authorisation to conduct investigative actions with respect to him.

COMPLAINTS

First, the applicant complained under Article 3 of the Convention that the conditions in the detention facilities of Dmitrov and Volokolamsk amount to inhuman and degrading treatment.

Second, the applicant alleged a violation of Article 5 of the Convention on several counts. First of all, in his words the gun was planted in his car by the police with a view to preventing him from representing clients in a high-profile case (namely an “apartment bombing” case concerning alleged terrorist attacks in Moscow and Volgodonsk in 1999). Secondly, he submitted that his detention from 22 to 31 October 2003 had not been duly authorised. He also indicated that his detention between 31 October and 5 November 2003 had not been covered by any detention order. The applicant also alleged that the court had failed to present any facts or justification in support of its ruling of 5 November 2003, and that this detention order was also unlawful in domestic terms.

THE LAW

1. The applicant complained about conditions of his detention in the detention centres of Dmitrov and Volokolamsk between 22 October and 1 December 2005. Article 3, referred to by the applicant, reads as follows:

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

The Government argued that conditions in those detention centres could not be considered to amount to “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. They pointed out that the sanitary conditions in all the cells where the applicant was detained were found to be satisfactory. The applicant was in good health; he underwent a medical examination upon arrival and during his detention made no request for medical assistance. The applicant was given necessary bedding and crockery.

In the applicant’s submissions, the Government’s account of conditions of detention is inaccurate and, in some respects, bluntly false (see the applicant’s description of conditions of his detention, summarised above). The Government’s assertion that the sanitary conditions were “satisfactory” were not supported by any detailed description or valid documents. Moreover, even the facts admitted by the Government alone could lead to a conclusion that the conditions of detention exceeded “the threshold of severity” thus bringing the situation within the ambit of Article 3 of the Convention. Thus, the Government did not deny that cell no. 101 in the detention centre of Volokolamsk contained on certain occasions 20 people and thus left one square metre for each inmate. The applicant recalled that the European Committee for the Prevention of Torture and Inhuman or Degrading treatment or punishment (CPT) had set 7 m² per prisoner as an appropriate, desirable guideline for a detention cell. Thus, in the applicant’s view, even based on the Government’s information it is possible to conclude that the cell was overcrowded, something which in itself raises an issue under Article 3 of the Convention. The same concerns the fact that the applicant was not allowed any outdoor activity for more than twenty five days of his detention in Dmitrov.

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

2. The applicant complained that his detention from 22 October until 19 December 2003 was unjustified and unlawful. He referred to Article 5 §§ 1 and 3 of the Convention, which, insofar as relevant, read 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. ... ”

The Government submitted that the applicant’s rights under Article 5 of the Convention had not been violated. The applicant’s detention on remand was justified by the suspicion that he had committed an offence, namely, possessed a gun. The authorities adduced “relevant and sufficient” reasons for the applicant’s detention throughout these periods, in particular the danger of his absconding and obstructing the establishment of the truth.

As to the lawfulness of the applicant’s arrest on 22 October 2003 and the detention order of 24 October 2003, the Government stressed that the detention order of 24 October 2004 was quashed by the Moscow Regional Court “for procedural reasons”. The court of appeal did not challenge the justification for the applicant’s detention in custody but just rectified a procedural error committed by the first instance court.

As regards the period between 31 October 2003, when the appeal court ordered to release the applicant, and 5 November 2003, when the first instance court issued a new detention order in his respect, the Government pointed at the following. The decision of 31 October 2003 had been rendered by the court of appeal late in the afternoon. The applicant was not present at the hearing, and, therefore, could not have been released immediately in the courtroom. The delivery of official mail was the duty of the State messenger service (фелдъегерская служба). However, since 1 and 2 October 2003 were days off, the decision was dispatched by this service to the detention centre ИЗ 50/2 in Volokolamsk only on 3 October 2003. They concluded that the delay in dispatching the court of appeal’s decision ordering the applicant’s release was “caused by objective reasons and was explained by remoteness of the place of the applicant’s detention from the court”.

The applicant maintained his complaints. First of all, he submitted that there existed no reasonable suspicion against him and that the court’s conclusions in this respect were manifestly ill-founded. He insisted that he fell victim to an entrapment because of his role in the apartment bombing cases and that the gun was planted to him. Further, the police could not arrest him without a prior court decision sanctioning a criminal investigation in his respect. Immediately after his apprehension on 22 October 2003 the applicant informed the policemen that he was an advocate and showed his identity card to them. As an advocate, he could not have been arrested without a separate court decision which would authorise the opening of a criminal investigation in his respect (see the “Relevant Domestic Law” part above). The unlawfulness of his arrest and detention in custody was recognised by the decision of the Moscow Regional Court of 31 October 2003.

Contrary to what the Government alleged in their memorandum, the applicant insisted on his personal presence at the hearing in the court of appeal. However, he was not brought to the court because otherwise he would be released immediately in the courtroom, which was not in the interests of the prosecution authorities.

Between 31 October and 5 November 2003 the applicant was kept in custody without any valid detention order. The authorities deliberately delayed the dispatch of the decision ordering his release, in expectation of a new detention order. On 5 November 2003 the prosecution adduced no new arguments to support their second request for the applicant’s detention; his detention from 5 November 2003 onwards was not justified by any genuine requirements of public necessity.

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

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits.

Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident

 

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