TREPASHKIN v. RUSSIA (NO. 2)

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14248/05
by Mikhail Ivanovich TREPASHKIN
against Russia (No. 2)

The European Court of Human Rights (First Section), sitting on 22 January 2009 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,

Søren Nielsen, Section Registrar.

Having regard to the above application lodged on 13 March 2005,

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, Mikhail Ivanovich Trepashkin, is a Russian national who was born in 1957. He is currently serving his sentence in Nizhniy Tagil. He is represented before the Court by Mrs Y. L. Liptser, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives 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. Background information concerning the applicant

The applicant is a former officer of the Federal Security Service of the Russian Federation (“FSB”). In 1998 he participated in a much publicised press-conference together with three other FSB officers. Some time after the press-conference the applicant remained in the country but was dismissed from the FSB. In 1998-2002 he served in the tax police and later became an advocate and a member of the bar association.

2. Criminal proceedings against the applicant and his detention in custody

(a) Criminal case no. 1

On an unspecified date the Chief Military Prosecutor’s Office initiated an inquiry related to the period of the applicant’s service in the FSB. The inquiry concerned the alleged disclosure of certain classified materials by the applicant.

On 22 January 2002 the prosecution carried out a search of the applicant’s home and discovered certain documents allegedly containing classified information. Assorted cartridges for various types of weapons were also found in a cardboard box on a shelf above the applicant’s writing table. The applicant alleged that the cartridges did not belong to him and had been planted by an FSB agent, posing as a plumber, shortly before the search.

During the search the prosecution also seized a video recording made by the applicant on 3 May 1999 in a forest near Bryansk. It showed the applicant and his friend Mr S. shooting for fun from the applicant’s duty weapon. The applicant explained that for that shooting he used a gun cartridge he had received from Mr S.

On 28 January 2002 the prosecution charged the applicant with the disclosure of State secrets and abuse of his official powers (“criminal case no. 1”) and illegal possession of firearms (the ammunition found in his flat).

From 24 March 2003 the applicant was under an obligation not to leave Moscow without authorisation from the investigator, prosecutor or the court. On 18 April 2003 the investigation was completed and the prosecution handed the materials of the case file to the applicant and his lawyers for examination. The defence had these materials at their disposal until 21 June 2003. On 24 June 2003 the case was transmitted to the court. The date of the first hearing was set.

(b) Criminal case no. 2. Arrest of 22 October 2003. Detention orders of 24 October and 5 November 2003

Despite the investigation in case no. 1, the applicant continued his professional activities as a lawyer. On the evening of 22 October 2003 he attended a meeting with officials from the police department of the Dmitrov town, Moscow Region, where he was assisting his client as an advocate. On the way home his car was stopped by traffic police. The car was searched and a handgun was discovered on the back-seat of the applicant’s car. The applicant was questioned about the gun; he asserted that it did not belong to him. However, the police officer decided to arrest the applicant and on the following day he requested the court to order the applicant’s further detention in custody.

On 24 October the Dmitrov Town Court ordered the applicant’s detention in custody 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). The detention order was confirmed on 5 November 2003 by the Dmitrov Town Court, and, on 13 November 2003, by the Moscow Regional Court (for more details see the case of Trepashkin v. Russia, no. 36898/03, 19 July 2007).

(c) Detention order of 1 December 2003

In November 2003 case file no. 1 and the bill of indictment were forwarded to the Military Court of the Moscow Circuit. The Military Court, referring to certain classified information contained in the file, decided to examine case no. 1 in camera.

On 1 December 2003 the Military Court of the Moscow Circuit held a preparatory hearing in the applicant’s case no. 1. In the course of that hearing the applicant complained of various procedural shortcomings in the preliminary investigation. In particular, the bill of indictment had not contained the exact dates on which the impugned crimes had allegedly been committed and had not specified the damage allegedly caused by the applicant’s acts. Further, the defence requested that certain pieces of evidence relied on by the prosecution be excluded from the case file.

The judge heard the parties and made certain procedural arrangements for the forthcoming trial. Most of the motions lodged by the defence were rejected; however, the applicant was granted additional time to examine the materials of the case file. Given that the file contained classified information, the applicant could have access to it only in the court’s buildings.

In the same ruling the judge ordered that the applicant be kept in custody. The judge observed that on 22 October 2002 the applicant had been apprehended by the police on suspicion of committing another crime. The applicant had thus breached his undertaking not to leave his permanent place of residence. The judge also stated that the materials of the case file contained an invitation to visit the United Kingdom, which, in the court’s view, indicated that that the applicant intended to leave Russia.

(d) Appeal against the detention order of 1 December 2003

On 3 December 2003 the applicant lodged an appeal against that decision. He claimed that the judge had not adduced good reasons which would call for his detention. The invitation to the United Kingdom expired in September 2003. In July and August 2003 the applicant had asked the court to grant him leave to go to the Great-Britain, but that had been refused and since that time he had never tried to leave Russia. The applicant further stressed that the investigation had been already completed and he could not exert influence upon the witnesses in criminal case no. 1.

As regards criminal case no. 2, the accusations under that head were absolutely groundless: he alleged that the situation had been one of entrapment and the gun had been planted in his car by the FSB. In this connection the applicant drew the court’s attention to his personal situation and his perfect service record. He stressed that he was a mature person, not a youngster who would have a gun just “for fun”. He was a practicing lawyer and did not need a gun. At the time of his arrest he represented clients in more than forty pending cases. Moreover, he had five underage children and his wife did not work; there was therefore no risk of his absconding. The applicant also indicated that in November 2003, in the same circumstances, the judge had already rejected the prosecution’s requests for his detention.

In addition, the applicant complained that the prosecution and the court had violated various provisions of the domestic criminal procedure in ordering his arrest. In particular, a court had to issue a separate ruling ordering his detention, as required by the domestic law. Moreover, the judge did not withdraw to a consultation room for deliberation but delivered his decision immediately in the courtroom.

On 19 December 2003 the judge of the Dmitrov Town Court decided not to extend the applicant’s detention for the purposes of the proceedings in case no. 2. However, the applicant remained in the remand prison on the basis of the detention order of 1 December 2003, issued by the Military Court of the Moscow Circuit.

On an unspecified date in December the applicant requested the Military Court of the Moscow Circuit to release him. However, on 22 December 2003 the Military Court confirmed that the grounds for the detention set out in its earlier decision of 1 December 2003 were still valid.

On 19 January 2004 the appeal against the detention order of 1 December 2003 reached the Supreme Court of the Russian Federation. On 10 February 2004 the Supreme Court dismissed it. The hearing took place in the absence of the applicant; however, according to the Government, he was able to take part in the proceedings through a video conferencing system.

The appeal court acknowledged that the law required that a separate detention ruling be issued. However, that shortcoming was not such as to require the applicant’s release. As to the substance of the case, the court upheld the reasoning of the first-instance court. It noted that the fact that the applicant had been charged with another crime suggested that he could re-offend. Moreover, the invitation to the UK implied that he could flee from justice.

(e) Trial in case no. 1

The trial in case no. 1 was held behind the closed doors. The applicant was represented by three lawyers – Mr Glushenkov, Mr Gorokhov and Ms Yulina.

The defence maintained that the cartridges had been planted by FSB agents. Since the much publicised press-conference of 1998, FSB senior officials had wanted to settle old scores with him. The applicant asked the court to admit the videotape of that press-conference in evidence.

The applicant further supposed that the gun cartridges found in his flat could have been planted by FSB agents who had visited him shortly before the search in the guise of plumbers. The defence asked the court to summon these “plumbers”.

As to the allegedly “classified” materials discovered by the prosecution among his papers, the applicant did not deny that he had kept them. However, these files related to the period of his service in the KGB in 1984-1987. In his submissions, these materials have not been secret.

The court heard Mr Sh., who allegedly received from the applicant the classified information. The court also examined material documents and evidence, discovered in the applicant’s flat during the search of 22 January 2002, documents related to the period of his service in KGB (predecessor of FSB), reports of expert examination of the materials allegedly disclosed by the applicant which concluded that these materials contained secret information. The court also called and questioned one of the participants of the 1998 press-conference, Mr G., who denied the existence of any plan to eliminate the applicant. The court also examined the video record of the press-conference of 1998.

The court further examined the record of the seizure of 22 January 2002 during which the police discovered cartridges in his flat. The court further heard several witnesses who visited the applicant’s flat before the search. All of them denied having seen the ammunition in the applicant’s flat, but they had not looked into the cardboard box where the cartridges had been discovered. The court called and questioned three persons working in the housing maintenance service. They confirmed that on several occasions in 2000 – 2002 plumbers on duty visited the applicant’s flat.

The court also examined several relatives of Mr S. They testified about the episode of 3 May 1999, when the applicant and Mr S. were shooting for fun in a forest near Bryansk. The court also examined the video which showed Mr S. making a shot with the applicant’s gun.

(f) Judgment in case no. 1

On 19 May 2004 the Military Court of the Moscow Circuit pronounced a judgment in criminal case no. 1. The applicant was found guilty under two heads and sentenced to four years’ imprisonment, to be served in a “colony-settlement”. The court also ruled that the previously applied measure of restraint (detention on remand), should be maintained pending the examination of the appeals, if any. The court’s findings on the merits of the case may be summarised as follows.

i. Unlawful possession of firearms

The court’s findings under the head of “unlawful possession of firearms” related to two episodes.

First, the court convicted the applicant of unlawful possession of the assorted gun cartridges found in his flat during the search (Article 222 of the Criminal Code). The court referred to the results of the search and the testimony of two attesting witnesses who had been present during the search. The court was unable to establish when and in what circumstances the applicant had acquired those cartridges. However, the court rejected the applicant’s version that the cartridges had been planted by FSB agents who had visited the flat shortly before the search in the guise of plumbers. The court also rejected testimony by Ms S., the applicant’s partner, who denied having seen the cartridges in the cardboard box before the search.

Further, the court referred to a videotape seized by the prosecution in the applicant’s flat. The recording was made by the applicant on 3 May 1999 in a forest near Bryansk; it showed the applicant and his friend Mr S. shooting for fun from the applicant’s duty weapon. The court established that the cartridge used by Mr S. to shoot was unlawfully acquired by the applicant from him.

ii. Disclosure of State secrets

Second, the applicant was convicted of disclosure of State secrets. Thus, the court established that in the 1980s the applicant had served in the Soviet secret service, and had access to certain classified documents. He kept at his home a number of case files containing information about KGB informers and relating to the period of 1984-1989. In July-August 2001 the applicant showed these documents to his former colleague, Mr Sh.. Further, the applicant kept at his home certain materials relating to the period of his work in the FSB in the mid-1990s. Those documents were discovered in his flat in the course of the search of 22 January 2002.

Further, in February 2002 the applicant handed Mr Sh. four files containing information about the FSB’s investigative activities in the mid-1990s. In December 2002 Mr Sh. informed the Military Prosecution Office about that fact and handed over the files he had received from the applicant. At the relevant time Mr Sh. was not serving in the FSB; therefore, he did not have the necessary security clearance to have access to such documents. The court qualified the documents shown and given to Mr Sh. as “secret”. Thus, the applicant’s acts amounted to a “disclosure of state secrets”.

In reaching this conclusion the court referred to the testimony by Mr Sh., the results of the search of 22 January 2002 and the circumstantial evidence.

The video record of the press-conference produced by the defence was declared unreliable by the court. The court held that the video recording of the press-conference with Mr G., Mr L. and Mr P. (all former FSB officers) could not prove the applicant’s assumption that the cartridges had been planted in his flat by the FSB. The court also referred to the statements by Mr G. and Mr Sh., who denied any allegations of entrapment.

(g) Appeal proceedings

The defence appealed. They alleged, in particular, that the Military Court had had no jurisdiction to hear the case; that the investigation was started without proper authorisation by a court; that the defence was placed in a disadvantageous position vis-à-vis the prosecution; that the applicant did not have enough time and facilities to prepare his defence. They also claimed that the conclusions of the first-instance court were based on speculation and inadmissible evidence. The applicant also complained that the court did not attempt to find and summon the plumbers who had visited his flat shortly before the search.

Pending the appeal, the applicant, pursuant to the decision of the first-instance court, remained in remand prison ИЗ 77/1. On 9 August 2004 he wrote a letter to the court of appeal in which he repeated his complaints about the conditions in the detention centre (see below). He also sought transferral to a colony-settlement, where the conditions of detention and regime were milder. He indicated, in particular, that family visits in the prison were limited to two forty-minute periods per month, whereas there were no limitations on family contacts in colony-settlements. Moreover, he indicated that the inmates in colony-settlements lived in unguarded dormitories and were free to move about in its territory. He said that he had “not seen the sky for eight months”.

On 13 September 2004 the Military Chamber of the Supreme Court of the Russian Federation upheld the judgment of 19 May 2004. The Supreme Court dismissed the applicant’s argument that the Military Court of the Moscow Circuit was not competent to hear the applicant’s case. Although at the time of the proceedings the applicant was not a military officer, the impugned offences were committed by him during his military service; therefore, the Military Court was competent to hear the case. Further, the Supreme Court did not find any major irregularity in the investigative proceedings and rejected the argument that the defence did not have sufficient time and facilities during the trial. The Supreme Court noted that the pace of the trial (7–10 court hearings per month, each lasting about 3–5 hours) had been adequate and had not precluded the applicant from meeting his lawyers and preparing his defence. The applicant had not complained about the alleged breaches of confidentiality during the meetings with his lawyers.

(h) Detention orders of 6 September and 18 October 2004

On 7 May 2004 the Dmitrov Town Court received the case file and the bill of indictment in case no. 2.

On 24 May 2004 a judge of the Dmitrov Town Court set a date for the preliminary hearing. On 7 June 2004 the judge of the Dmitrov Town Court ordered that the proceedings in case no. 2 be suspended pending the termination of the appeal proceedings in case no. 1.

On 5 September 2004 the Supreme Court ordered that the proceedings in case no. 2 be resumed.

On 6 September 2004 the judge of the Dmitrov Town Court ordered the transfer of the applicant to the remand prison of Volokolamsk. That decision was rendered in the absence of the parties.

On 18 October 2004 the judge of the Dmitrov Town Court ruled that pending the trial in case no. 2, the applicant should remain in the remand prison in the town of Volokolamsk.

On an unspecified date the defence lodged a complaint under Article 125 of the Code of Criminal Proceedings, challenging the decisions of 6 September and 18 October 2005 to keep the applicant in the Volokolamsk remand prison.

On 28 October 2004 the Dmitrov Town Court dismissed that complaint on the ground that a decision by a judge should be appealed not to the first-instance court, under Article 125, but in the ordinary manner to a higher court.

The defence lodged an appeal against the decisions of 18 and 28 October 2004. On 7 December 2004 the Moscow Regional Court upheld the decisions of the Dmitrov Town Court. The Regional Court ruled that the applicant’s detention in the remand prison was justified by the need to secure his personal presence at the trial of criminal case no. 2.

(i) Detention order of 11 November 2004

On 11 November 2004 the judge of the Dmitrov Town Court held a preparatory hearing in case no. 2. The defence requested the applicant’s release on the ground that, by virtue of the judgment of 19 May 2004, he should have been serving his sentence in a colony-settlement. Such a measure did not amount to a deprivation of liberty. However, the judge dismissed that argument. The judge decided that the applicant had been sentenced to a “deprivation of liberty”. If sent to a colony-settlement, he might abscond and interfere with the course of justice. In support of that argument, the court referred to “information about the applicant’s personality” and the fact that he was facing a sentence of more than two years’ imprisonment. Hence, the court ordered the applicant’s detention on remand pending the trial. The defence appealed, stating, in particular, that the court had not considered any alternative measure of restraint and that there was not even a theoretical risk of absconding. On 9 December 2004 the Moscow Regional Court upheld the detention order of 11 November 2004.

(j) Applications for release of 1 December 2004 and 11 April 2005

On 1 December 2004 the defence lodged an application for release. However, the court refused to examine the application because at that point the appeal against the decision of 11 November 2004 was pending before the Moscow Regional Court. The defence appealed against that decision.

On 10 December 2004 the judge of the Dmitrov Town Court refused to refer the appeal by the defence against the decision of 1 December 2004 to the Supreme Court on the ground that such decisions were not subject to any appeal.

On 11 April 2005 the applicant lodged a second application for release. He claimed that the six-month time-limit for his detention pending trial had already expired. On the same day the court dismissed that request; it held that the time-limit was to be calculated from 11 November 2004.

(k) Trial and judgment in case no. 2

On 15 April 2005 the Dmitrov Town Court found the applicant guilty of unlawful possession of the firearm found in his car on 22 October 2003. The Town Court rejected the applicant’s contention that the firearm had been planted by the policemen.

The applicant appealed. On 1 July 2005 the Moscow Regional Court acquitted the applicant. The Regional Court found that the fact that the bag with the gun had been found in the applicant’s car did not necessarily mean that the gun had been put there by the applicant. No fingerprints belonging to the applicant or traces of his sweat had been found on the bag or the gun. There was no evidence that the applicant had had the gun before his arrest or that he had put it in his car. Moreover, the policemen who arrested the applicant insisted that the bag had fallen from the back-pocket of the driver’s seat. However, the “crime re-enactment” showed that in the circumstances this was physically impossible.

The Regional Court further noted that the Town Court had accepted neither the applicant’s version nor the account given by the prosecution. In the judgment it had put forward its own version of how the gun happened to be in the applicant’s car. In particular, the Town Court found that before leaving the car the applicant had hidden the gun under his coat, and that during the search the gun had fallen to the floor of the car. However, this version was not supported by evidence, and, moreover, the court had exceeded its powers by extending the factual scope of the indictment. As a result, the applicant was acquitted.

On 23 July 2005 the applicant was transferred to a colony-settlement in Nizhniy Tagil, where he arrived on 27 July 2005.

(l) Compensation for criminal prosecution

On an unspecified date the applicant brought proceedings claiming damages for his unlawful detention pending investigation and trial in case no. 2. He indicated, in particular, that the detention between 31 October and 5 November 2003 had had no lawful basis because the Moscow Regional Court had ordered his release (see the facts of the case Trepashkin v. Russia, no. 36898/03, §§9 ET SEQ., 19 July 2007).

On 26 September 2005 the applicant was awarded 75,000 roubles by the Dmitrov Town Court. The Town Court found that the whole period of the applicant’s detention on remand, until his acquittal, had been unlawful.

That judgment was appealed against by the prosecution and by the applicant. On 24 November 2005 the Moscow Regional Court quashed the judgment of 26 September 2005. The Regional Court noted that the first instance court’s judgment went beyond the scope of the applicant’s claims. The judgment of the District Court had covered the whole period of the applicant’s detention in the context of criminal case no. 2, whereas his civil claim, for some reasons, had only concerned the period of his detention between 22 October and 5 November 2003. Furthermore, the Regional Court indicated that from 1 December 2003 the applicant had been in custody in connection with another criminal case (no. 1), which had ended with his conviction. Lastly, the Regional Court indicated that the District Court had failed to summon the representatives of the Federal Treasury. As a result, the case was referred to the Town Court for fresh consideration.

In the proceedings before the Town Court the applicant confirmed that his claim only concerned the period between 22 October and 5 November 2003. On 10 May 2006 the Town Court ruled in favour of the applicant. The Town Court found that the applicant’s detention had been unlawful, awarding him RUR 30,000 in compensation for the non-pecuniary damage sustained. The applicant appealed, claiming that the award was too small. On 4 October 2006 the Moscow Regional Court upheld the judgment of 10 May, stating as follows:

“... [The first-instance court correctly found that] from 22 October to 5 November 2003 the applicant was detained on remand unlawfully, since, by virtue of the decision of the Moscow Regional Court of 1 July 2005, the judgment of the Dmitrov Town Court [in respect of the applicant] ... was quashed, and the case was closed because the applicant had not been involved in the [alleged] crime.

... [The applicant] was fully rehabilitated in respect of the events which had served as a basis for his detention between 22 October and 5 November 2003 ...”

The Regional Court concluded that the amount awarded by the Town Court was reasonable.

3. Conditions of detention and transportation

(a) Conditions in the remand prison of Moscow (December 2003) - cell no. 274

On 1 December 2003 the applicant was placed in remand prison IZ- 77/1 in Moscow following the decision of the Military Court of the Moscow Circuit in connection with criminal case no. 1.

i. The applicant’s account

The applicant arrived at remand prison IZ-77/1 very late and spent the night in a cell measuring 1.5 by 1.8 square metres, which had no windows or ventilation, was filthy and smoky and full of lice. Only on the morning of 2 December 2003 did he receive dried cereals.

From 2 December 2003 the applicant was detained in cell no. 274 of remand prison IZ-77/1. According to the applicant, the cell was unventilated, although most of his cell-mates were heavy smokers. Moreover, some of the other detainees were convicted criminals. The cell was also overcrowded: there were fourteen detainees for eight sleeping places. As a result, the detainees had to sleep in turns. The applicant was unable to sleep more than two hours a day, and the rest of the time he had to stand, because all the beds were occupied by his sleeping cellmates, and there were no seating places in the cell. The applicant shared his sleeping place with four other detainees, including one suffering from psoriasis; consequently, their common sleeping place was constantly covered with this individual’s scabs. The cell was not equipped with radio and the administration provided no newspapers. Although prison regulations provided for a shower once a week, the applicant was unable to wash himself for almost four weeks, despite his numerous complaints about that fact.

ii. The Government’s account

The Government maintained that the applicant’s description of conditions in cell no. 274 was inaccurate. Thus, the cell had a combined supply-and-exhaust ventilation system. The toilet and the water tap were separated from the residential area; the cell had a table, several benches, cupboards for the detainees’ personal belongings, a wall cupboard for food, a mirror, a TV-set, a refrigerator and cold and hot water.

(b) Conditions of transportation; conditions in the courtroom

i. The applicant’s account

The applicant was regularly taken out of the remand prison to the court for attendance at court hearings and examination of the case file in connection with criminal case no. 1. Transportation usually started at five o’clock in the morning. However, in order to be able to wash himself or to go to the toilets, the applicant had to rise earlier, and wait his turn in a queue.

Between 5 and 9 a.m. the applicant, together with other detainees, waited for a prison van in a small, seat-less and smoky cell of the remand prison. Whilst being transported, the applicant and other detainees were kept in the closed metal trunk of an unheated prison van. The van was so overcrowded that the detainees, some of them with active tuberculosis, had to stand face to face during transportation. While, in principle, a prison van should carry no more than 6–8 detainees, in fact the applicant’s van carried 20 people on average, convicted criminals as well as suspects.

The van arrived at the courthouse shortly after noon and the applicant had two to three hours to examine the case file. In the courthouse he was kept in a “convoy room” which was also overcrowded, unheated and smoke-filled. The applicant was so cold that, when brought into the court, was unable to read the materials of the file or prepare his defence: his only concern was to get warm. Moreover, in the courthouse he was kept handcuffed to a table-leg or a chair, so that it was very difficult for him to read the case file or take notes. This position also caused severe pain in his back. At about 3 p.m. the convoy officers collected the detainees from different courts and transported them in a van to a central collection point. There the detainees waited for several hours in the vans to be dispatched to their respective detention facilities. As a result, the applicant often arrived at his detention facility after 11 p.m., although a convoy officer recorded an earlier time in the register of detainees. According to the applicant, he spent an average of about fifteen hours in total per day in the van, convoy room and collection. On several occasions, in particular on 4, 18 and 19 December 2003, he was left without food and water for the whole day.

On 5 December 2003, i.e. five days after his arrival to the remand prison IZ-77/1 the applicant wrote a letter to the court in which he described the conditions of his detention and transportation to and from the courthouse. He submitted that in these circumstances he was unable to examine the case file and prepare his defence properly. He also indicated that the convoy officers had refused to accept any written complaints from him. He sought permission to read the case file in the detention centre. By letters of 9 and 15 December 2003 the court explained that it had no control over the prison administration and convoy services and that all such complaints should be addressed directly to them. The court further stated that the case file was to be kept in the courthouse, since it contained classified documents and information.

On 10 December 2003 the applicant wrote a new letter to the court, asking it to provide him with additional time to read the case file. He repeated his complaints about the conditions of detention and transportation. He asked the court to order the guards not to handcuff him during the reading of the file.

On 26 December 2003, on his way back from the court to the collection point, the applicant was placed in the metal-clad compartment of a prison van with another detainee, a mentally disturbed person. The latter was on his way from the Serbskiy Institute of Psychiatry to the prison hospital. The compartment was so small that the applicant had to stand on one leg after another. After three hours of this very uncomfortable posture, the applicant asked the convoy officers to put him in a different compartment, but they refused. He then knocked on the door of the compartment, repeating his demand. In reply the convoy officers opened the door and hit him with a rubber stick.

The applicant produced a written statement signed by Mr N., his cell-mate in remand prison IZ-77/1, in which the latter confirmed that the applicant had no individual sleeping place in the cell. Mr N. also testified that the applicant often had no possibility to sleep before going to the court in the mornings, and did not receive adequate medical treatment. Depositions in the same terms were signed by the applicant’s cellmates Mr Y., Mr Pt. and Mr Gb.

Because of the conditions of transportation the applicant had a constant cold, from which he would never have recovered without the medicines sent to him by his relatives. He indicates that it was very hard to get an appointment with a prison doctor and that the quality of medical aid available in the detention facility was very poor.

ii. The Government’s account

The Government maintained that the detainees dispatched from the remand prison to the court were provided with an “individual daily ration of food”, in accordance with the rules in force. The Government referred to a certificate issued by the head of the remand prison.

The detainees were transported in a separated compartment of the prison vans. According to reports by the two chief officers of the unit responsible for transportation, dated 5 and 14 March 2007, the number of detainees in the prison vans always corresponded to the norms then in force. The Government referred to the photos of prison vans and the plans showing how the detainees were seated inside the vans. The vans corresponded to domestic standards in the area of transportation of detainees. During the cold season they were kept overnight in a heated garage. Furthermore, the vans were heated with a heating system using the warmth of the engine. The temperature in the prison vans corresponded to the local regulations; in this respect, the Government referred to an act issued by the officers in charge. The inside of the vans was washed every day; furthermore, the vans were disinfected every week (the Government referred to a report of 6 March 2007).

During the period in question the applicant was taken to the court 53 times. The average duration of transportation between the remand prison and the court was 30-50 min (8 km).

Cells for the detainees in the court building were “of standard [dimensions]”, and “suited different categories of detainees”. The applicant was detained separately from other detainees. The handcuffs were applied only during embarkation to and disembarkation from the prison van. The detainees in court cells were provided with boiled water.

(c) Conditions of detention after the applicant’s transferral to another cell in remand prison ИЗ 77/1 (January – October 2004)

i. The applicant’s account

On 24 December 2003 the applicant was summoned by the deputy chief administrator of the remand prison. The latter inquired about the applicant’s complaints to the European Court of Human Rights concerning the conditions of detention and threatened him with various disciplinary measures, in particular, placement in a strict isolation cell. The applicant immediately informed his lawyer of the conversation.

On 30 December 2003 the applicant signed a declaration in which he stated that he had no complaints about the conditions of detention. He was then transferred to cell no. 603 in building no. 6 of the remand prison. The conditions in that cell were better than in his previous one. It contained only five people and a hot shower was available twice a week for the detainees of that cell. However, the room was not ventilated and the other detainees smoked constantly. Moreover, the unit had no appropriate courtyard for outdoor exercise. Instead, the detainees were taken to a dusty and covered cubicle, made out of concrete, measuring 3.5 by 4.5 metres, under a roof. Walking in this room in clouds of concrete dust caused an aggravation of the applicant’s asthma and various other health problems.

The applicant’s defence complained to the prison authorities. As a result the applicant was examined by a general practitioner; the doctor diagnosed asthma and cardiological problems and prescribed glasses. At the same time, the doctor concluded that the applicant’s state of health had not deteriorated during his detention in the remand prison.

On 5 January 2004 the applicant withdrew the statement made on 30 December 2003. He explained to his lawyer that he had been given an opportunity to sign this declaration in return for transfer to a cell where he would have an individual sleeping place and access to a hot shower.

On an unspecified date the applicant’s counsel wrote to the Ministry of Justice complaining about the conditions of her client’s detention.

In their reply of 29 January 2004 the Ministry confirmed that, on arrival at remand prison ИЗ 77/1, the applicant had been placed in a cubicle because no appropriate cells had been available. He spent no more than two hours there. From 1 a.m. to 9 a.m. he underwent a medical examination, fingerprinting, photographing, a personal search, etc. At 9 a.m. he received a “bag meal” and was conveyed to the court. On his return to the remand prison the applicant was placed in a cell for eight, where, at this time, twelve people were detained.

The Ministry explained that at the relevant time the population of the remand prison exceeded its planned maximal capacity by seventy-five per cent. The cell was not equipped with sitting places because it was too small.

As to the timing of transportation to the court, detainees were usually woken up at 5.30 a.m. and were taken out of their cells at 6 a.m. Every day about 150-200 persons were conveyed from the remand prison to the courts. Convoy officers were always informed about the detainees’ illnesses or other special conditions.

According to the Ministry, time for visits by relatives was limited to 40 minutes because of the lack of appropriate meeting rooms; as regards meetings with the defence counsel, the applicant experienced no limitations in this respect. Thus, in December 2003 the applicant had four meetings with his lawyers (on 3, 16, 15 and 20 December 2003) which lasted nine hours in aggregate. The applicant was unable to take a shower for four weeks because the “sanitary treatment” (washing) of detainees took place on the dates when the applicant was in the court.

On 19 May 2004 the Ministry of the Interior informed the applicant that his complaints about the delays in transportation of detainees to and from the court had proved to be accurate, at least in part. The applicant was assured that the necessary measures would be taken in that respect in future.

On 22 June 2004 the applicant complained to the prison administration about the conditions in the room for physical exercise (or rather the “walking room”). On 1 October 2004 he repeated his complaints stressing that he suffered from asthma of allergic origin and could not breathe normally in the walking room, because of the clouds of concrete dust and lack of fresh air arriving from the outside. He also complained that patients from the prison hospital who suffered from infectious diseases, such as hepatitis, aseptic meningitis, dysentery, syphilis and AIDS, were taken to walk in the same room. They often had diarrhoea and vomited in this very room, but nobody cleaned up after them. In the letter he listed the cell-mates who were willing to confirm the accuracy of his account, a total of seven. He did not receive a reply to those letters.

ii. The Government’s account

The Government maintained that in December 2003 the conditions of the applicant’s detention were improved after he was transferred to cell no. 603. That cell had recently been renovated; his transfer was justified by the fact that the applicant was a former law enforcement official and suffered from chronic diseases.

The Government further maintained that once a week the detainees were given an opportunity to take a fifteen-minute shower. Every day the detainees were taken out for a walk in a walking yard. Wing no. 2 of the remand prison had 13 walking yards, measuring 417 square metres in aggregate. Wing no. 6 of the remand prison had 11 walking yards, measuring 199 square metres in aggregate. All walking yards had benches and rain sheds.

The Government further enumerated the measures taken by the authorities to improve conditions of detention in Russian remand prisons. They described the conditions in the meeting rooms, where detainees could work with the case files, communicate with their lawyers, etc. Each detainee was entitled to a private visit of at least 40 minutes every day.

(d) Conditions in the meeting rooms

i. The applicant’s account

On 18 March 2004 the applicant wrote a letter to the Director of the Execution Department of the Ministry of the Interior. In this letter the applicant submitted that he was unable to meet his lawyer out of the hearing of prison guards and other detainees. He explained that the room where the detainees met their lawyers was partitioned into six small cabins for two, with detainees being separated from their lawyers by a grill. This made it impossible to work with documents and a detainee had to speak quite loudly to be heard. As a result, other detainees, and the guard walking along the line of cabins, could hear conversations between the applicant and his lawyer. It was impossible to transmit any document through the grill, even newspapers with the texts of newly adopted legislation. The applicant was unable to meet both of his defendants at the same time, since the cabin held only two persons.

ii. The Government’s account

The Government in their submissions described the meeting rooms as follows. In remand prison IZ-77/1 there were 50 rooms “for investigative activities”. Each room was equipped with a table, three chairs, a coat-hanger, an alarm button and a peephole. The Government referred to photos of the rooms; however, they did not submit them. During meetings between a detainee and his lawyer, the prison staff were unable to hear them, but they could observe what happened in the room through a peephole.

(e) Conditions in the Volokolamsk remand prison (October 2004 – July 2005)

On 6 September 2004 the judge of the Dmitrov Town Court of Moscow Region ordered that the applicant be transferred from the remand prison in Moscow to the remand prison of Volokolamsk, in order to secure his attendance at the trial before the Dmitrov Town Court of the Moscow Region in connection with case no. 2. The applicant challenged this decision in appeal, but to no avail: on 7 December 2004 it was upheld by the Moscow Regional Court (see above, the sub-section “Detention orders of 6 September and 18 October 2004”).

i. The applicant’s account

On 8 October 2004 the applicant was transferred to the remand prison in Volokolamsk. He was examined by a commission of doctors who concluded that the applicant was suffering from bronchial asthma and chronic bronchitis.

The applicant submits that he was first placed in cell no. 66, measuring 15 square metres, with eight other people; some of them were heavy smokers. He had no individual sleeping place, the table was very small, and inmates received no toilet paper. The drinking water tank was broken. On 12 October 2004 the applicant complained about the conditions of detention to the administration of the remand prison. As a result, he was transferred to cell no. 123 where the conditions of detention were somewhat better.

Over the following months the applicant was detained in a number of other cells, which were always overcrowded and infested with lice and bugs. In December 2004 he was detained in a cell measuring 12 square metres with seven other detainees. His daily physical activity was limited to a walk of less than one hour in the prison courtyard, under the supervision of guards with Rottweiler dogs.

The applicant produced written statements by his cell-mates who submitted that he was detained in cells nos. 66, 101 and 123 of the Volokolamsk remand prison from November 2003 until 27 October 2004. All of them confirmed that the cells were infested with lice and bugs and that the prison administration did nothing to get rid of them. They also stated that the cell was overcrowded: thus, in cell no. 66 the applicant did not have an individual sleeping place and there were only three or four sitting places for 9 or 11 inmates. Though the applicant was sick, he did not receive necessary medicines and had not been examined by a doctor. Their account was confirmed by four other inmates who were detained with the applicant at the relevant time.

On several occasions, between November 2004 and 29 April 2005, the applicant was transferred to the Dmitrov Town detention centre in order to participate in the hearings in the Dmitrov Town Court. He spent about 15 days there in aggregate. The conditions of detention in the Dmitrov detention centre were even worse than in the Volokolamsk remand prison. Thus, there was no opportunity for any physical exercise, the cells were always overcrowded and badly ventilated, there were no washtubs or sitting places and the lighting was poor. On each occasion that the applicant was transferred from the remand prison to the detention centre, he had to carry all his personal belongings and documents and travel in smelly, dark and unheated metallic compartments in the prison vans. On one occasion the applicant was placed in a cell with repeat offenders and “ordinary” criminals. He did not receive proper medical aid and his state of health deteriorated.

On 7 June 2005 the applicant was transferred from the remand prison in Volokolamsk to a remand prison in Moscow (IZ-50/9). On 25 July 2005 the applicant was transferred to a colony in Nizhniy Tagil, to serve the sentence imposed by the judgment of 19 May 2004.

ii. The Government’s account

The Government maintained that cell no. 66 was equipped with a water tank which contained boiled water. In addition, tap water in the cell was drinkable.

The Dmitrov detention centre was built in 1983. It was situated in a semi-basement under the Dmitrov police station. The Government admitted that at the relevant time the detention centre had had no walking yards, which were under construction.

The applicant was detained in a single-occupancy cell measuring 6.6 square metres. That cell was “equipped with a window opening” measuring 88 x 65 centimetres. The bed was a wooden deck, 50 centimetres from the floor. The cell was also equipped with a toilet with a combined “system of sink and canalisation”. The toilet was separated from the other parts of the cell by a barrier. Heating in the cell was provided by the town’s central heating system. The cell was lit by a 150 Watt halogen lamp installed in the wall above the entrance. The cell had a cold-water supply; in addition, hot water was available in the shower room and in the “room for warming-up food”. The detainees were provided an opportunity to use a shower. The cells were ventilated naturally and through a “forced exhaust ventilation” system. The applicant was given bedding. On arrival every detainee received soap and toilet paper.

On 2 December 2003 the cell was examined by the detention centre’s administration. The examination did not reveal any problems with the sanitary condition of the cell, when was described as “satisfactory”. The administration noted that the cells have been cleaned with disinfection substances.

While in detention, the applicant always received necessary medical aid. Thus, during his stay in remand prison IZ-77/1 (Moscow) the applicant was supervised by a doctor in connection with his bronchial asthma and received “supportive treatment”. In April-May 2005 the applicant was examined by the doctors in remand prison no. IZ-50/2 (Volokolamsk). They concluded that the applicant was suffering from “vegetovascular dystonia” (autonomic neuropathy). The applicant received all necessary treatment in connection with his diseases.Relevant domestic law

1. General rules on pre-trial detention

Under Article 91 of the Code of Criminal Procedure, 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.

Under Article 94, within forty-eight hours from the time of 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.

Under Article 108, taking into custody as a measure of restraint is imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by deprivation of liberty 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 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 refuses 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.

As a rule, the detention order should be requested by the prosecution. However, under paragraph 10 of Article 108, if the question of detention of the accused arises during the court hearing, the court can apply detention on its own motion.

Under Article 97 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.

Under Article 98, the circumstances to be taken into account when imposing the measure of restraint, apart from those specified in Article 97 of the Code, include 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. Under 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 on whether 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 of the date of its receipt.

Article 109 defines the maximum length of detention on remand. It distinguishes between “detention pending the investigation” and “detention pending the trial”. Article 227 and 228 provide that the trial court, after having received the case from the prosecution should decide, within 14 days of its receipt, if the applicant is detained, whether to prolong or cancel the measure of restraint previously applied. Under Article 255, the court may order detention for a period of up to six months from the date of the receipt of the case file by the court. In the cases concerning grave and very grave crimes the court may extend detention for a further three months. The detention may thus be extended several times.

2. Special rules of investigation with respect to lawyers

Under Article 447 of the Code, a special procedure is to be applied in criminal cases concerning lawyers. Under Article 448, a prosecutor takes the decision to initiate criminal case against a lawyer, and this decision is then subject to approval by a judge. Under Article 450 § 5 (“Special Features of Imposing Measure of Restraint and Conduct of Individual Investigative Actions”), if there is no court decision authorising the criminal prosecution of a lawyer, the court is to give authorisation to conduct investigative actions in respect of the lawyer.

3. Jurisdiction rules

Under Article 37 § 5 of the Code of Criminal Procedure military tribunals are competent to examine “criminal cases in respect of military servicemen”.

4. Detention on remand and detention following a conviction

The regime of detention on remand was established by the federal law of 15 July 1995, with subsequent amendments (Федеральный Закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений»). In accordance with this law, most remand prisons, including one in which the applicant was detained, are administered by the Ministry of Justice. A prison may be used as a detention centre on condition that convicted criminals are detained separately from persons under investigation or awaiting trial.

Inmates in remand prisons live in locked and guarded cells and have the right to one walk per day, lasting one hour minimum, in a special enclosed courtyard, where they should be able to exercise and play sports. The courtyard should be equipped with benches for sitting. They can be deprived of their walks for disciplinary offences. They may spend a very limited amount of money on personal needs, have two short and two long family visits a year, and receive four parcels. The internal rules in strict-regime prisons are even more severe.

The Russian Code on the Execution of Criminal Punishment (Уголовно-исполнительный кодекс, CECP) provides for five main types of penitentiary institutions for convicted criminals: colony-settlement, general regime colony, strict regime colony, special regime colony and prison.

The conditions of serving a sentence in a colony-settlement are the mildest. In particular, prisoners do not live in cells or barracks but in unguarded dormitories. The number and length of family visits are not limited, nor is the possibility of receiving parcels and money from home. As an incentive for good behaviour and subject to approval by the administration, convicts may live outside the colony with their families, in rented flats, leave the colony for holidays and weekends, move freely within the city or district where the colony is situated, etc. They do not wear uniform and can dispose of their money as they please. The convicts may even be granted leave to work in another town or district, or participate in distance-learning programmes of higher education establishments. In contrast, the regime in prisons is the most severe.

Under Article 77.1 of the CECP, if a convicted person is still under a preliminary investigation in a different criminal case, a competent prosecutor may order that he be kept in a remand prison for the duration of the investigation. Pending trial such an order should be issued by a competent court.

5. Conditions of detention – international instruments

The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955 and approved by the Economic and Social Council in its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular:

“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation...

11. In all places where prisoners are required to live or work,

(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.

14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time.

15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness...

19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.

(2) Drinking water shall be available to every prisoner whenever he needs it.

21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

45... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...”

The relevant extracts from the General Reports prepared by the European Committee for the Torture and Inhuman or Degrading Treatment or Punishment (CPT) state:

Extracts from the 2nd General Report [CPT/Inf (92) 3]

“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.

47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... Prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...

48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...

49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...

50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.

51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...”

Extracts from the 7th General Report [CPT/Inf (97) 10]

“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.

The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”

Extracts from the 11th General Report [CPT/Inf (2001) 16]

“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...

29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.

30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... Even when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”

6. Compensation for wrongful criminal prosecution

The Civil Code of the Russian Federation provides as follows:

Article 1070: Responsibility for damage caused by the unlawful acts of investigative authorities, prosecuting authorities and courts

“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ... ”

Article 1100: Grounds for compensation for non-pecuniary damage

“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when:

...the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand ....”

The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeaser. However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by the unlawful acts of law-enforcement agencies. Point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession[1]. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given ...”. These words, as well as the subsequent judicial practice,[2] suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” at the outset. Therefore, if there was an acquittal, pre-trial detention would be “unlawful” even if all the substantive and procedural rules were complied with when it was imposed.

Under the new Code of Criminal Proceedings (CCrP), in force as from 1 July 2002, the acquitted person has the right to compensation for pecuniary (Article 135 of the Code) and non-pecuniary damage (Article 136) caused by prosecution (Article 133 § 1) and unlawful application of measures of restraint, including pre-trial detention (Article 133 § 3). Under Article 136 of the CCrP, if information about the arrest or prosecution of a person was made public in the media, the acquitted person, his relatives, or a public prosecutor may request the publication of a retraction by the same medium.

COMPLAINTS

A. Complaints under Article 3

1. Under Article 3 of the Convention the applicant complained about the conditions in the remand prisons of Moscow and Volokolamsk and the Dmitrov detention centre, and about the conditions of transportation from the remand prisons and detention centre to the courts and back. He claimed that those conditions amounted to inhuman and degrading treatment.

B. Complaints under Article 5

2. Under Article 5 § 1 (c) the applicant complained that his detention from 1 December 2003 to 23 July 2005 had been unlawful. The detention orders of 1 December 2003 of the Military Court of the Moscow Circuit and of 11 November 2004 of the Dmitrov Town Court were not issued as separate documents, although the domestic law clearly required that this be the case. Under the same Convention provision the applicant also complained that the authorities had no “reasonable suspicion” against him: criminal cases nos. 1 and 2 were fabricated and the firearms had been planted on him by the FSB in order to prevent him from representing clients in a high-profile case.

3. Under Article 5 § 4 the applicant claimed that the review of the detention order of 1 December 2003 had not been speedy. It had taken the court of appeal 66 days to review the detention order of 1 December 2003. Furthermore, he had not been able to take part in the hearings before the court of appeal, although he had insisted on his personal attendance.

4. Under Article 5 § 1 (a) the applicant complained that his detention in the Volokolamsk remand prison after his conviction had been unlawful. Pursuant to the judgment of 19 May 2004 he should have been sent to a colony-settlement (колония-поселение). The law did not allow the transfer of convicted persons to a remand prison from a colony-settlement. However, the applicant had remained in the remand prison pending the proceedings in criminal case no. Further, when ordering his detention on 11 November 2004, the Dmitrov Town Court failed to consider alternative measures of restraint. The court did not refer to any factual circumstances that would call for his detention.

5. Finally, under Article 5 § 4 the applicant also complained that the judge of the Dmitrov Town Court had refused to examine the appeal against the decision of 1 December 2004, thus rejecting the applicant’s application for release (case no. 2).

C. Complaints under Article 6

6. Under Article 6 § 1 of the Convention the applicant complained that the Military Court of the Moscow Circuit had no jurisdiction to hear case no. 1.

7. Under Article 6 § 1 of the Convention the applicant complained that the domestic courts were not “independent and impartial”. Russian law provided for a special procedure of criminal investigation with respect to lawyers, which was not followed in his case. That fact suggests that the courts which examined his case were not “independent and impartial”.

8. Under Article 6 § 1 and § 3 (a), (b) and (c) of the Convention the applicant complained that the defence had been placed in a disadvantageous position vis-à-vis the prosecution. Thus, the criminal charges against him had been too vague, and the prosecution had failed to clarify them in the course of the proceedings, despite his numerous requests. Neither he nor his lawyers had full access to all the materials of the case file.

9. Under Article 6 § 1 and § 3 (b) of the Convention the applicant claims that the defence did not have enough time to prepare for the hearings, given that hearings were held almost every day. Referring to the difficult conditions in which he had to read the materials of his case, the applicant alleges that he did not have “adequate time and facilities” to prepare his defence. Moreover, the court had failed to examine his complaints in this respect.

10. Under Article 6 § 1 and § 3 (c) of the Convention the applicant complained that he had been unable to meet with his lawyers in private and out of the hearing of the guards. The meetings between the applicant and his lawyer took place in a small room in presence of prison guards who could easily hear their conversations. The guards prevented him from giving his lawyers any written materials or receiving such materials from them.

11. Under Article 6 § 3 (d) the applicant complained that the court had refused to call witnesses for the defence.

D. Other complaints

12. Under Article 13 the applicant complained that there was no effective remedy against the judge’s decision to place him in the Volokolamsk remand prison, and that the judge had refused to examine the appeal against the detention order of 1 December 2004.

13. Under Article 34, the applicant complained that on 24 December 2003 the administration of the remand prison had put pressure on him in connection with his complaint to the European Court of Human Rights. Thus, he was threatened with disciplinary measures if he continued to complain about prison conditions. As a result, on 30 December 2003 he had to sign a “statement” in which he withdrew his complaints concerning the conditions of detention. As a result, he was temporarily transferred to the hospital unit of the remand prison, where the conditions of detention were somewhat better.

THE LAW

1. ARTICLE 3 OF THE CONVENTION

Under Article 3 of the Convention the applicant complained about the conditions in the remand prisons of Moscow and Volokolamsk and the Dmitrov detention centre, and about the conditions of transportation from the remand prisons and the detention centre to the courts and back. He claimed that those conditions amounted to inhuman and degrading treatment.

Article 3 of the Convention reads as follows:

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

A. The Government’s submissions

The Government claimed that the conditions of the applicant’s detention in the remand prisons of Moscow and Volokolamsk, and in the Dmitrov detention centre, as well as the conditions of his transportation to the courts and back were compatible with Article 3 of the Convention. They presented their account of the conditions of detention in the above facilities (see the “Facts” part above). The Government also referred to a number of documents in support of their submissions (photos of the cells, reports by convoy officers, etc.). However, the Court observes that those documents were not attached to their observations.

B. The applicant’s submissions

The applicant claimed that the Government in their observations had merely summarised the rules and standards which should be applied in all Russian prisons, but which did not correspond to reality. On the contrary, his description of the conditions of detention and transportation had been based on his personal experience and contained specific facts. He insisted on his description of the material conditions of detention. The reports by officials and other documents referred to in the Government’s observations were unreliable.

C. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaint under Article 3 about the conditions of the applicant’s detention and transportation 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. ARTICLE 5 OF THE CONVENTION

The applicant submitted a number of complaints under Article 5 of the Convention. They related to his detention pending trials in cases nos. 1 and 2. Article 5, insofar as relevant, provides:

“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:

(a) the lawful detention of a person after conviction by a competent court;

...

(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.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The Court will address the applicant’s complaints concerning his detention by periods: the first period will cover the time the trial in case no. 1 (from 1 December 2003 to 19 May 2004), the second period will cover the appeal proceedings in case no. 1 (from 19 May to 13 September 2003), and the third period - the trial in case no. 2 (from 13 September 2004 to 23 July 2005, the date when the applicant was transferred to the colony-settlement).

A. Period from 1 December 2003 to 19 May 2004

1. Compliance with Article 5 § 1 (c) of the Convention

The applicant complained about the alleged unlawfulness of the detention order of 1 December 2003, by which his detention pending trial in case no. 1 had been authorised. The detention order was formulated in the same document as other procedural decisions, which was against the law. Further, the applicant claimed that the circumstances of his arrest did not give rise to a “reasonable suspicion” that he had committed another criminal offence. He stressed that both cases against him had been fabricated by the FSB.

The Government in their observations maintained that the detention order of 1 December 2003 had been lawful. The CCrP stipulated that, during a trial, detention on remand could be ordered for up to six months. Therefore, the detention order of 1 December 2003 had been valid until the applicant’s conviction on 19 May 2004. The Government denied the applicant’s allegation that the cases against him had been fabricated by the FSB.

The Court recalls that Article 5 § 1 requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. However, the logic of the system of safeguard established by the Convention sets limits on the scope of the review by the Court of the internal “lawfulness” (Kemmache v. France (no. 3), judgment of 24 November 1994, Series A no. 296‑C, § 37). The analysis of the Convention case-law under Article 5 § 1 demonstrates that not every and each disregard of the domestic formalities automatically entails a breach of the Convention under Article 5 § 1. The Court must, in the first place, ascertain that detention was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000‑IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III). A period of detention will in principle be “lawful” if it is carried out pursuant to a court order (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, pp. 752-753, §§ 40 and 42; see also Nowicka v. Poland, no. 30218/96, § 58, 3 December 2002).

Turning to the present case, the Court notes that the applicant’s detention was ordered by a court acting within its jurisdiction (see below, the Court’s analysis under Article 6 § 1 ), by a reasoned decision, following a hearing at which the applicant and his lawyers had been present, and did not exceed the maximum time-limit established by the CCrP. Indeed, as was pointed out by the court of appeal, the first-instance court had failed to issue a separate detention warrant, but incorporated it in the text of the ruling which concerned various issues discussed at the preliminary hearing of 1 December 2004. However, such informality, in the view of the Court, did not make the detention warrant “unlawful” within the meaning of Article 5 § 1 (c) of the Convention.

As to the existence of a reasonable suspicion against the applicant, the Court reiterates that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Labita v. Italy [GC], no. 26775/95, § 155, ECHR 2000-IV). However, the “reasonable suspicion” referred to in Article 5 § 1 (c) does not mean that the suspected person’s guilt must at that stage be established (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). Sub-paragraph (c) of Article 5 § 1 does not even presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody (see Erdagöz v. Turkey, judgment of 22 October 1997, Reports 1997-VI, p. 2314, § 51).

In the present case the “suspicion” against the applicant in criminal case no. 1 was supported by, at least, two items of evidence – the report on the search in his house and the testimony of Mr Sh. In the Court’s opinion, those two elements were sufficient to make the suspicion “reasonable” in the eyes of an independent observer. The Court further notes that the applicant’s detention order of 1 December 2003 also referred to the incident of 22 October 2003, when a gun had been discovered in the applicant’s car. The fact that in 2005 the applicant was acquitted in this respect has no importance: as the facts stood on 1 December 2003, the military court had certain reasons to believe that the applicant had re-offended. In the circumstances, the Court is unable conclude that the suspicion of him having committed the imputed offences in cases nos. 1 and 2 was completely groundless or unreasonable. Therefore, the applicant’s detention was based on the “reasonable suspicion”, as required by Article 5 § 1 (c) of the Convention.

The Court concludes that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Compliance with Article 5 § 4 of the Convention

The applicant complained that his appeal against the detention order of 1 December 2003 had been examined 66 days after it was lodged and, therefore, in breach of the “speedy review” requirement of Article 5 § 4 of the Convention. Furthermore, he claimed that he had not been present at the court of appeal hearing, although he had requested authorisation to attend.

The Government claimed that the Supreme Court had examined the applicant’s appeal within one month of its receipt, that is, within the time-limits fixed by the law. The three-day time-limit set by the CCrP for the examination of appeals against detention orders was not applicable, since the Supreme Court had examined not only the lawfulness of the applicant’s detention but also his other complaints. The applicant had been able to present his arguments to the court of appeal through the videoconferencing system.

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.

B. Period from 19 May to 13 September 2004

The applicant maintained that, pursuant to the judgment of 19 May 2004, he should have been sent to a “colony-settlement”. Instead, he was kept in a remand prison; the decision to keep him there had not been duly reasoned.

The Court notes that, by virtue of the judgment of 19 May 2004, the applicant was convicted to a four-years’ detention in a colony-settlement. The applicant appealed against the judgment and thus remained in the remand prison pending the outcome of the appeal. The Court accepts that conditions of detention in the remand prison were a priori worse than those in which the applicant would find himself if he was transferred to the colony-settlement immediately after his conviction. However, the Court is not persuaded that it should affect its analysis of the applicant’s situation from the standpoint of Article 5 of the Convention. Having analysed the domestic legislation on colony-settlements (see above) the Court concludes that, despite its relative lenience, that form of criminal sanction still amounted to a deprivation of liberty within the meaning of Article 5 of the Convention (see Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39). Therefore, after 19 May 2004 the applicant was deprived of his liberty under Article 5 § 1 (a) (see Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7).

The Court has confirmed that Article 5 § 1 (a) must be taken to have left the Contracting States a discretion in the matters of implementation of the detention "after conviction" (see Monnell and Morris judgment of 2 March 1987, Series A no. 115, § 47). However, it does not mean that the executive has an unlimited discretion in respect of convicted individuals. The Court should be able to detect instances of manifest arbitrariness (see Veermae v. Finland (dec.), no. 38704/03, ECHR 2005‑VII).

Turning to the present case, the Court notes that after his conviction the applicant remained in the remand prison. Between 19 May and 13 September 2004 the applicant’s detention in the remand prison in Moscow was explained by the appeal proceedings pending in his case. In the Court’s opinion, that was a legitimate reason for not transferring him to the colony settlement, situated in Nizhniy Tagil, as provided by the judgment of 19 May 2004. Therefore, there was a link between the applicant’s detention in the remand prison and his conviction. His detention during that period was “lawful” in terms of Article 5 § 1 (a).

 It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Period from 13 September 2004 to 23 July 2005

1. Compliance with Article 5 § 1 (a) of the Convention

The applicant maintained that, in accordance with the decision of the court of appeal of 13 September 2004, he was supposed to be sent to a colony-settlement to serve his sentence. Colony-settlement is the mildest form of deprivation of liberty under Russian law. However, on 6 September and 18 October 2004 the Dmitrov Town Court ordered his placement in the Volokolamsk remand prison in connection with case no. 2. Both decisions were taken in the absence of the parties and reasons were not given. The applicant further maintained that the detention order of 11 November 2004 was not based on a “reasonable suspicion” against him. Further, the court did not indicate why it considered that the applicant might abscond or interfere with the course of justice. Finally, the detention order was tainted with procedural informalities and therefore unlawful.

The Government maintained that the detention orders at issue were fully justified and lawful in the domestic terms. Indeed, after the court of appeal upheld the judgment in the applicant’s criminal case no. 1, he remained in the remand prison for another ten months. The Government explained this fact by the need to conduct trial in his case no. 2, heard by the courts of the Moscow Region. Moreover, they maintained that the applicant was finally acquitted; consequently, he had a “right to rehabilitation”. However, he did not initiate rehabilitation proceedings. On 10 May 2006 the Dmitrov Town Court awarded him RUB 30,000 in compensation for his unlawful detention between 22 October and 5 November 2003.

First, the Court reiterates that during the period under consideration the applicant was already detained under Article 5 § 1 (a). The Court notes that the trial in case no. 2 lasted less than a year, and there is no evidence or any gross negligence on behalf of the authorities that unnecessarily prolonged the applicant’s stay in the remand prison. Likewise, the Court does not see any signs of arbitrariness on behalf of the authorities. In the circumstances, the Court considers that the need to secure the applicant’s participation in the trial in criminal case no. 2 was a legitimate reason for his belated transferral to the colony-settlement. The Court is satisfied that there was a sufficient link between the deprivation of liberty and the applicant’s conviction, and that the applicant’s detention was thus justified under Article 5 § 1 (a), no matter where the applicant served his sentence.

Second, the Court notes that on 1 July 2005 he applicant was fully acquitted in criminal case no. 2. The acquittal gave the applicant the unqualified right to compensation for pecuniary and non-pecuniary damage caused by wrongful prosecution, pursuant to Article 1100 of the Civil Code of the Russian Federation. The Court notes that from the materials in the case-file it follows that, indeed, the applicant chose not to claim damages for his detention after 5 November 2003, or for any other inconveniences caused by his criminal prosecution within the framework of case no. 2. The Court recalls its findings in the case of Trepashkin v. Russia, (no. 36898/03, §§ 78 et seq., 19 July 2007). In that case the Court analysed the remedy provided by Article 1100 of the Russian Civil Code. It noted that “that provision of the Civil Code, as interpreted by the Russian courts, afforded the applicant a genuine opportunity to obtain pecuniary redress for the detention he complained of”. The Court notes that the acquittal made his detention and prosecution “unlawful” in domestic terms, and, consequently, made him eligible for compensation. That “unlawfulness” covered all aspects of the applicant’s detention, and provided him with a practical opportunity to obtain compensation for it at national level. The Court notes that the applicant did not claim that this remedy was not “effective and adequate”. In such circumstances the Government’s objection should be sustained: the applicant failed to exhaust the domestic remedies available to him.

Consequently, this part of the complaint under Article 5 § 1 (a) should be declared inadmissible for non-exhaustion under Article 35 §§ 1 and 4.

2. Compliance with Article 5 § 4 of the Convention

The applicant complained, under Article 5 § 4 of the Convention, that he had been unable to appeal against the decision of 1 December 2004 by which his application for release was rejected.

The Court reiterates that the guarantees of Article 5 § 4 of the Convention are applied differently to various types of deprivation of liberty, permissible under Article 5 § 1 of the Convention. In the case of De Wilde, Ooms and Versyp v. Belgium (18 June 1971, § 76, Series A no. 12) the Court held that “where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5 § 4 obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 § 4 is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after "conviction by a competent court"”.

In the present case, as from 19 May 2004 the applicant’s detention was covered by Article 5 § 1 (a) of the Convention. Therefore, the applicant’s subsequent attempts to challenge court decisions ordering to keep him in the remand prison were irrelevant: the supervision required by Article 5 § 4 was incorporated in the judgment in his case no. 1.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. ARTICLE 6 OF THE CONVENTION

The applicant presented a number of complaints under Article 6 of the Convention. His main grievances are summarised in the “Complaints” part above.

Article 6, insofar as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing .... by ... an independent and impartial tribunal established by law. ...

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

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

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

A. The Government’s submissions

The Government asserted that the applicant’s rights under Article 6 had not been breached. The applicant had not substantiated in what respect the defence had been handicapped. Likewise, he did not specify which witnesses the defence had been unable to examine during the trial. The Government denied that the applicant had been handcuffed in the courtroom cell where he studied the materials of the case file.

At to the lack of privacy in the meeting rooms, the Government denied the applicant’s allegations. They referred to various photos of the meeting rooms. The Court observes, however, that those photos were not attached to the Government’s observations.

B. The applicant’s submissions

The applicant maintained that the military court had not had jurisdiction to hear his case no. 1. At the time of the trial the applicant was a civilian, and his case should therefore have been heard by an ordinary court. Therefore, the applicant was not convicted by a court established “in accordance with law”. Further, the court did not follow the procedure which should have been applied in his case, given his status of a lawyer.

The applicant further claimed that he had not received a fair hearing of his case. Thus, the applicant claimed that the accusations against him had been too vague; as a result, he had not understood them. In particular, the bill of indictment neither specified the exact time and place where the impugned acts had been committed, nor the motives and goals of those acts.

Further, on many occasions the applicant asked the court to slow the rhythm of the hearings, which were held almost every day. In such conditions, and having regard to the poor conditions of detention and transportation to the court building, he was unable to prepare properly for the hearings. The applicant claimed that the case file contained his motions to that end.

The applicant maintained that he had been unable to speak with his lawyers in private before the beginning of the hearings. Nor were there arrangements for confidential meetings between the applicant and his lawyer in the prison ward. The applicant maintained that he had had access to the case file only in the court building; it was difficult to take notes because the applicant was always handcuffed to the table or the chair.

The applicant maintained that several motions in which he attempted to obtain the attendance of witnesses and expert witnesses had been dismissed by the court.

C. The Court’s assessment

1. Whether the military court was competent to hear the applicant’s case

The applicant claimed that the Moscow Circuit Military Court was not a “tribunal established by law”.

The Court recalls that according to its case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament” (see Zand v. Austria, application no. 7360/76, report of the Commission of 12 October 1978, D.R. 15, p. 70). Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 98, ECHR 2000-VII). The Court further reiterates that, as it has previously held, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it. In the Zand case (cited above), the former Commission expressed the opinion that the term “a tribunal established by law” in Article 6 § 1 envisages “the whole organisational set-up of the courts, including ... the matters coming within the jurisdiction of a certain category of courts...”. Therefore, as a matter of principle, a breach by a court of rules on competence ratione personae, ratione materiae etc. may entail a violation of Article 6 § 1 under the head of the requirement “established by law” (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, §§ 22 et seq., 20 July 2006).

At the same time, the Court also reiterates that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see, for example, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 61, ECHR 2003-V; and Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003-X).

Turning to the present case, the Court notes that the applicant contested the interpretation of the law on military tribunals by the domestic judicial authorities. The Court notes that the Code of Criminal Procedure established that military tribunals should examine cases “in respect of military servicemen”. It transpires from the decision of the Supreme Court that it preferred a broad interpretation of this provision. The Supreme Court concluded that military tribunals were competent to hear cases not only in respect of acting servicemen, but also in respect of former servicemen, insofar as the accusation concerned an act committed during the defendant’s service or in connection with it. In the Court’s opinion, such an interpretation is not arbitrary.

As the applicant’s situation fell within the Supreme Court’s interpretation of the domestic law, the Court concludes that the applicant’s right to be judged by a “tribunal established by law” was not breached and that his complaint in this respect is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Whether the military court was independent and impartial

The applicant further complained about the lack of independence and partiality of the military court, in that it failed to follow a special procedure of criminal investigation with respect to lawyers. However, the applicant’s arguments do not convince the Court. Even if there was a procedural irregularity in the way in which the proceedings were initiated, as the applicant suggested, this did not mean that the court was not impartial or independent. As such, procedural decisions unfavourable for the defence cannot justify a claim that a court is biased or show the court’s lack of autonomy.

The Court concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Whether the applicant had sufficient information about the accusations against him and was given access to all materials in the case file

The applicant further complained that the accusation against him had been too vague. Thus, the time and the place where the alleged crimes had been committed, and the applicant’s presumed motives, had not been specified. Further, the applicant complained that he had not received full access to the materials of the case. As a result, he was unable to defend himself properly.

The Court recalls that an accused has the right to know “material facts ... on which the accusation is based” (see Balette v. Belgium (dec.), no. 48193/99, 24 June 2004; see also Sipavičius v. Lithuania, no. 49093/99, § 28, 21 February 2002). Whether or not a particular fact is pertinent to the subject-matter of the accusation should be decided in each case with due regard to the nature of the accusation, the definition of the criminal offence in the domestic law, and other factors. In the present case the applicant was charged with, first, unlawful possession of gun cartridges, and, second, with divulgation of state secrets. It appears that the domestic authorities (both the prosecution and the courts) regarded as immaterial certain information related to those events. The applicant, on the contrary, regarded those facts as relevant and very important. In the circumstances, however, the Court is unable to accept the applicant’s line of argument. The decisions by the domestic courts not to examine these facts do not appear manifestly unreasonable or arbitrary. Having examined the materials before it and the applicant’s submissions, the Court does not see how the alleged factual lacunas in the accusation prevented the applicant from defending himself in respect of the charges against him as they were formulated by the prosecution.

Further, from the applicant’s submissions it is unclear what part of the case file was not available to the applicant or to his lawyers. This part of the complaints is thus unsubstantiated.

The Court concludes that the above complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Whether the applicant had adequate time and facilities to prepare his defence and meet his lawyers in private

The applicant complained that the conditions of his detention and transportation prevented him from working with the case file. He further complained about the lack of privacy during the meeting with his lawyers. 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.

5. Whether the applicant’s right to obtain attendance and examination of witnesses was respected

The applicant alleged that the authorities had failed to secure attendance at the trial of witnesses and experts whom the defence had wished to question. However, as the Government rightly pointed out in their observations, neither in the application form nor his observations did the applicant specify the names of the witnesses and experts whom he had allegedly sought to call and examine. Further, he did not explain the reasons for summoning those experts and witnesses. The Court notes that the applicant, who himself was a lawyer and who was represented by lawyers both before the Court and in the domestic proceedings, failed to substantiated this complaint.

The Court concludes that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. ARTICLE 13 OF THE CONVENTION

Under Article 13 of the Convention the applicant complained that he had no effective remedies to challenge his placement in the Volokolamsk remand prison in connection with criminal case no. 2. Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that it examined this complaint under Article 5 § 4 of the Convention, which is, in the circumstances, lex specialis. The Court declared the complaints about the applicant’s detention pending the proceedings in case no. 2 inadmissible (see above). In the circumstances the Court concludes that the complaint under Article 13 should also be is declared manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. ALLEGED BREACH OF ARTICLE 34 OF THE CONVENTION

The applicant claimed that on 24 December 2003 the administration of the remand prison put pressure on him in connection with his complaint to the European Court. In his opinion, this was in breach of Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

A. The Government’s submissions

The Government claimed that the applicant’s rights under Article 34 had not been breached. Under §§ 94 – 96 of the internal rules of remand prisons (enacted by the Decree of the Ministry of Justice of 12 May 2000, no. 148), prison administration is to visit the cells every day, so that detainees can lodge complaints and proposals. Complaints are then forwarded to the head of the remand prison, who decides on them. However, these routine visits are not recorded. Therefore, the Government was unable to say who had spoken to the applicant on 24, 30 December 2003 and 5 January 2004, and on what matter.

B. The applicant’s submissions

The applicant maintained that he was pressured by the administration of the detention facility in connection with his complaints to the European Court.

C. The Court’s assessment

The Court recalls that it is of the utmost importance for the effective operation of the system of individual petition guaranteed under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 105; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 105; and Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, § 159). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy. Having regard to these criteria, the Court considers that the allegation of hindrance raises serious issues of fact and law under the Convention, the determination of which requires its further examination.

For these reasons, the Court by a majority

Declares admissible without prejudging the merits, the applicant’s complaint concerning the conditions of his detention and transportation between 1 December 2003 and 23 July 2005;

Declares admissible without prejudging the merits, the applicant’s complaint concerning the speediness of the review of his appeal against the detention order of 1 December 2003, and his alleged absence from the appellate hearing of 10 February 2004,

Declares admissible without prejudging the merits, the applicant’s complaint concerning the lack of time and facilities for the preparation of his defence, and his inability to meet with his lawyers in private and out of the hearing of the guards and exchange documents with them.

Decides to pursue the examination of the allegation of the respondent Government’s failure to comply with its obligations under Article 34 of the Convention;

Declares the remainder of the application inadmissible.

Søren NielsenChristos Rozakis
RegistrarPresident

[1]. In 2004 the Supreme Court decided that the Decree of 1981 should apply to disputes concerning compensation for non-pecuniary damage caused by unlawful prosecution and conviction (Ruling of 1 June 2004, No. КАС04-203).

[2]. See, among other authorities, Ruling No. 5-65/04 in the case of S., quoted in the “Overview of the judicial practice of the Supreme Court” of 23 November 2005.

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