CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 novembre 2005

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler, judges , and Mr S. Nielsen , Section Registrar, 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, Kirill Yuryevich Sukhovoy, is a Russian national, who was born in 1982 and lives in Ivanovo. He is represented before the Court by Ms   E.   Liptser, a lawyer with the International Protection Centre in Moscow. The respondent Government are represented by Mr P.A.   Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. A.     The applicant’s detention and conviction On 4 January 2000 between 10 and 11 p.m. the police arrested in the street and took to the police station a group of teenagers, including the applicant, who had allegedly robbed and beaten up two passers-by. Between 2:30 and 3:00 in the morning on 5 January 2005, an investigator of the Oktyabrskiy District Police Department of Ivanovo interrogated the applicant as a witness in the absence of a lawyer. He was informed that he was criminally responsible for a refusal to testify and for deliberately giving false evidence. He was also informed about his constitutional right not to incriminate himself. According to the applicant, he was beaten up by a police officer at the time of interrogation in order to extort his confession. He stated that it were his friends who proposed to rob and beat the victims and described in detail who did what. He further stated that he had tried to stop the beating but when the victim hit him he fought back. He carried a stolen fur-cap and a bag. At 6:30 a.m. on 5 January 2000 the investigator issued an order for the applicant’s detention on suspicion of having committed robbery. Upon the applicant’s arrival on the same day in a temporary confinement ward of the Ivanovsky Region police department he was examined and a graze on his chest was found. A record drawn up by the police contains a statement written by the applicant that he was healthy. The applicant did not explain the origin of the graze and did not complain about any ill-treatment by the police. According to the applicant, on 5 January 2000 his mother retained a private lawyer for his defence and informed an investigator about it. Between 4:30 and 5:10 p.m. on 5 January 2000 the applicant was questioned as a suspect in the presence of a state-appointed lawyer. The applicant was informed of the reasons for his detention in detail, the victims’ names and details of the property which had allegedly been misappropriated. On 6 January 2000 the investigator ordered the applicant’s detention on remand, which was confirmed by a public prosecutor on the same day. On 8   January 2000 he was transferred to detention facility IZ   33/1 in Ivanovo. As a result of a medical examination on 11   January   2000 no injuries were found on him. On 14 January 2000 the applicant was charged with robbery and on 25   February 2000 he was questioned as an accused, on both occasions in the presence of a state-appointed lawyer. According to the applicant, some time after his arrest, a local television station reported on his detention. Journalists said that the crime had been stopped because the victims had alarmed the police quickly. The applicant further submits that an official report of one of the policemen, who took him to the police station, stated that he had arrested “criminals”. On 7 April 2000 the applicant’s lawyer filed an application with the prosecutor’s office for the applicant’s release. On 13 June 2000 the request was rejected and the prosecutor advised that it was open to the applicant to appeal against that decision to court. The applicant did not do so. On 21 May 2000 the preliminary investigation in the case ended. On 26 June 2000 the Oktyabrskiy District Court of Ivanovo held a hearing. The applicant’s co-defendants gave statements at trial against the applicant in relation to the charges against him. The applicant submitted inter alia that during the fight with one of the victims someone had hit him. By a judgment of 26 June 2000 the applicant was convicted of robbery and sentenced to eight years’ imprisonment. On 20   July   2000 the Ivanovo Regional Court dismissed the applicant’s appeal and upheld the judgment. B.     Investigation in respect of the applicant’s allegations of ill ‑ treatment by police On 11 August 2000 the applicant’s mother complained to the prosecutor’s office about the applicant’s alleged ill-treatment by the police. On 25   August   2000 the office of the prosecutor of the Oktyabrskiy District of Ivanovo refused to open criminal proceedings as the applicant’s allegations had not proved to be based on real facts. It was established in the course of the prosecutor’s investigation that the applicant had never complained about his health or about ill-treatment by police officers in the course of the investigation actions which had all been conducted in the presence of legal counsel. Nor did he raise such complaints at the trial. In the course of the same investigation it was established that the applicant had spent eight hours in the police station without a warrant for his detention in breach of the Code of Criminal Procedure, and that he had been unlawfully interrogated at night as a witness. These violations were communicated by the prosecutor’s office to the head of the investigation department of the Ivanovo Oktyabrskiy district police who was requested to take relevant measures. Following the prosecutor’s report, the responsible police officers were subjected to disciplinary sanctions. On 27 October 2000, following the applicant’s mother’s appeal, the Oktyabrskiy District Court of Ivanovo Region quashed the decision of the prosecutor’s office and ordered it to conduct an additional investigation, in particular to question the police officers who were involved in the applicant’s detention and who convoyed him to the detention facility IZ   33/1. Such additional investigation actions were carried out shortly afterwards and, on 8 December 2000, the prosecutor again decided that no criminal proceedings should be brought. Following the applicant’s mother’s appeal to a higher prosecutor the decision of 8   December 2000 was quashed and an additional investigation was ordered. On 19 February 2001 the prosecutor’s office again refused to open criminal proceedings. The decision noted that when examined on 5 January 2000 upon his arrival in the temporary confinement ward the applicant had been found to have a graze on his chest, whose origin he did not explain. He did not complain about his health. On the contrary, he wrote in a report that he was healthy. He did not complain about any ill ‑ treatment by the police. The prosecutor held that the applicant’s statement at trial that during the robbery someone hit him made it possible to assume that he had received the graze during the fight with the victim of the robbery or in other circumstances prior to his arrest. The decision of 19   February 2001 was quashed following the applicant’s mother’s appeal on the grounds of incomplete investigation. So were several subsequent decisions with the same outcome until the decision of 17   October 2002 which was upheld by the Oktyabrskiy District Court of Ivanovo Region on 4   December   2002. The court held that when examined in the temporary confinement ward on 5   January 2000 the applicant had been found to have a graze on his chest. It was documented by a special report on which the applicant wrote that he was healthy. He did not complain about his health or about any ill-treatment by the police. He did not explain the origin of the graze. On 8   January 2000 the applicant was transferred to the detention facility IZ   33/1. A doctor of IZ   33/1 who examined him on 11   January   2000 found no injuries. The court concluded that the prosecutor’s office had exhausted all possible means of establishing the facts. It, thus, upheld the decision, by which the application for bringing criminal proceedings for the applicant’s alleged ill-treatment had been dismissed. The court also noted that the investigator in charge of the applicant’s case had learned about the applicant’s private lawyer on 14   January 2000. On 24   December 2002 the Ivanovo Regional Court upheld the first-instance court’s decision. C.     Conditions of the applicant’s pre-trial detention in IZ 33/1 From 8 January 2000 to 2 August 2000 the applicant was held in the detention facility IZ 33/1 in Ivanovo, also referred to as SIZO 33/1. He was first held in cells no. 50 and no. 53 together with other juvenile detainees. On 10 May 2000, after he had become 18 years old, he was placed together with adult detainees in cell no. 42. The parties gave a different description of conditions of detention in SIZO 33/1. 1.     The applicant’s account The applicant’s cell held 35 detainees instead of 8 for whom it was designed. The inmates slept in turns, having five hours’ sleep maximum. Cells were poorly lit and ventilated and were infested with bed-bugs and lice. In many cells the floor was made of concrete. Unhygienic conditions promoted the fast spread of skin and other diseases. Food and medical care were below standard. On 12 March 2004 the applicant’s lawyer obtained statements by two individuals, M and T, who were detained in SIZO 33/1 at the same time, from January 2000 to June-July 2000. According to M, 35 persons were held in cell no. 82 in which there were 14 bunks. Therefore the detainees slept in turns. The floor was made of concrete. There were bed-bugs and lice. All the detainees were infected with scabies more than once. The only access to medication was if supplied by families. Bedding was also supplied by families. Three shower cubicles were made available for 35 detainees during 20 minutes maximum. According to T, there were 14 bunks in a cell while the number of people was two or three times higher. Therefore people slept in turns. Medication was supplied by families. The cell was infested with bed-bugs and lice. 20 ‑ 25 minutes allowed for taking a shower was insufficient. Following the applicant’s complaint about the conditions of his detention, the prosecutor’s office of the Ivanovo Region examined his allegations. Its letter no.   17-81-2000 of 16 October 2000 stated as follows: “...In connection with a significant overcrowding of the detention facility [IZ 33/1] at present, particularly during a period before July 2000, not all remand prisoners were provided with an individual bunk and bedding. At the same time, all remand prisoners under the age of 18 were provided with an individual bunk and bedding....” The prosecutor’s office further stated that food was according to standards. The medical centre was sufficiently supplied with medicines. The premises were regularly disinfected. The conditions of detention were subject to regional prosecutor’s monthly inspections to ensure that they complied with statutory standards. 2.     The Government’s account The statutory standard of four sq.   m. per person could not be complied with during the period in question for reasons beyond the prison administration’s control. However, all juvenile detainees, including the applicant, had an individual bunk and bedding. The quantity of bunks and the number of people per cell were, on average, as follows: 12 bunks and 10-11 detainees in cell no. 50; 10 bunks and 6-7 detainees in cell no. 53 and 16 bunks and 16-17 persons in cell no.   42. The sanitary condition of the cells was satisfactory. They were cleaned daily. Natural and electrical lighting complied with standards. The detainees could take a shower weekly. Clothing and bedding were regularly subjected to disinfection treatment. Upon his arrival the applicant underwent a medical examination which revealed no injuries or disease. He asked for medical care on one occasion when he fell ill of pharyngitis and he received a medical treatment from 13   to 17   July 2000. D.     Conditions of the applicant’s detention after conviction in OK-3/6 The applicant is serving his sentence in the penitentiary establishment OK-3/6 in the Ivanovo Region. The parties gave a different description of conditions of detention in OK-3/6. 1.     The applicant’s account He is exposed to HIV infection as HIV-infected prisoners use common sanitary, medical and canteen facilities in the prison. Following the applicant’s mother’s complaint, on 18   November   2002 the prison administration informed her that HIV-infected prisoners use canteen and sanitary facilities separately from others, and that the premises are disinfected afterwards. The applicant suffers from chronic streptococcal impetigo, a skin decease accompanied with abscesses. A medication for his treatment in the prison is mainly supplied by his mother. 2.     The Government’s account The applicant asked for medical care on a number of occasions in connection with his skin disease and once in connection with an acute respiratory disease. Each time he received appropriate medical treatment. Thus, according to a certificate of the penitentiary establishment OK-3/6 of 18   February 2002, the applicant received treatment for chronic streptococcal impetigo from 5 to 26 December 2001, after which his condition improved. When undergoing a medical examination on 4 December 2003 he did not have any complaints and his state of health was assessed as satisfactory. HIV-infected prisoners are isolated from others. They receive medical care in special hours with the use of disposable medical instruments. They use canteen facilities separately from others and the utensils are subjected to special treatment. Their detention in the same penitentiary establishment with other prisoners does not represent any risk to the latter’s health. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention that the conditions of his detention in the remand facility IZ-33/1 in Ivanovo from 8   January to 2 August 2000 amounted to inhuman and degrading treatment. 2.     Under the same provision he also complains that the conditions in the penitentiary establishment OK-3/6, where he is presently serving his sentence, amount to inhuman and degrading treatment. 3.     He also complains under Article 3 of the Convention that he was beaten up in the course of his first interrogation and that the investigation into his complaints did not comply with requirements of Article 13 of the Convention. 4.     The applicant complains under Article 5 § 1 (c) of the Convention that his detention pending trial was unlawful. 5.     He complains under Article 5 § 2 of the Convention that after his arrest on 4 January 2000 he was not informed promptly of the reasons for his arrest and of a charge against him. 6.     He further complains under Article 5 § 3 of the Convention that he was not brought promptly before a judge or other officer authorised by law or released pending trial. 7.     The applicant complains under Article 6 § 1 of the Convention that the judgment in his criminal case was based on inadmissible evidence and that the trial court failed properly to assess materials of the case. 8.     He complains under Article 6 § 2 of the Convention that in a local broadcast televised before the trial journalists reported that the crime in progress had been stopped because the victims had alarmed the police quickly. The applicant further complained that an official report of one of the policemen, who took him to the police station, stated that he had arrested “criminals”. 9.     The applicant complains that the conditions of his detention in the remand facility IZ-33/1 breached his rights under Article 6 § 3 (b) of the Convention in that he could not prepare his defence properly. Furthermore, he did not know who was an investigator in charge of his case until the end of the investigation. Therefore he did not know about charges against him and could not defend himself properly. He also complains that the key investigator was a friend of the victim. 10.     He complains under Article 6 § 3 (c) of the Convention that in the course of his first interrogation he could not defend himself as he was obliged to tell the truth as a witness and since he was not given legal assistance. He further complains that the investigating authority hindered his defence by his private lawyer and by his mother. THE LAW 1.     The applicant complains under Article 3 of the Convention about the conditions of his pre-trial detention in the remand facility IZ-33/1 in Ivanovo. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government acknowledge that the statutory norm of four sq.   m. of space per person could not be observed at the time for reasons beyond the control of the detention facility administration. However, juvenile detainees, including the applicant, were provided with individual bunk and bedding. The sanitary condition of the cells was satisfactory. The applicant had access to medical care. Therefore, the conditions of detention did not violate his rights guaranteed under Article 3 of the Convention. The applicant disputes the Government’s description of the conditions of detention maintaining his complaints. He argues, with reference to the seven sq.   m. per person guideline which was noted in the Court’s judgment in the case of Kalashnikov (see Kalashnikov v. Russia , no.   47095/99, § 97, ECHR 2002 ‑ VI), that his detention in a cell with less than four sq.   m. of personal space constituted in itself inhuman and degrading treatment incompatible with Article 3 of the Convention. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The Court examined the other complaints raised by the applicant before it. However, in the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning the conditions of his detention in the remand facility IZ-33/1 from 8   January to 2 August 2000; Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President