CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 octobre 2007

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Loucaides , President ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   S.E. Jebens ,   Mr   G. Malinverni, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 29 November 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Viktor Viktorovich Bordikov, is a Russian national who was born in 1964 and lives in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P.   Laptev, the Representative of Russia 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.     The applicant’s detention on remand On 19 March 1995 a substantial quantity of marijuana was uncovered in the applicant’s apartment. He was taken into custody and then released on 23   March 1995 on a written undertaking not to leave the city. The criminal proceedings against the applicant were stayed from 5   July 1995 to 13 May 1996 because the applicant could not be found at his place of residence. From 13 June 1996 to 14   May 1998 the proceedings were suspended because the applicant’s name was placed on the list of fugitives from justice. On 29 April 1998 the police arrested the applicant and found cocaine on him. More drugs and some ammunition were discovered in his apartment. The applicant was taken into custody. On 26 July 1999 the applicant was released since the period he had spent in detention on remand reached the limit established by Russian law. On 14 January 2000 the applicant was re-detained with a view to bringing him to trial. On 24 January 2000 a judgment in the applicant’s case was adopted and he was released on a written undertaking not to leave the city. Following the remittal of the applicant’s case for re-examination by the court of appeal, on 8 June 2000 the Kirovskiy District Court ordered to stay the proceedings because of the applicant’s illness. On 17 May 2001 the proceedings were resumed. On the same day the Kirovskiy District Court ordered to detain the applicant because he was charged with serious and particularly serious criminal offences. Following the applicant’s failure to appear in hearings, on 5 June 2001 the Kirovskiy District Court ordered to put his name on the list of fugitives from justice. The hearing was conducted in the presence of legal-aid counsel Mr G. who had been appointed to represent the applicant. On 13 September 2001 the police apprehended the applicant and placed him in detention. On 19 March 2002 the applicant lodged a petition for release from detention. He complained that on 17 May 2001 the court had remanded him in custody in the absence of his lawyer, that counsel G. acting on his behalf on 5 June 2001 had been appointed without his consent or prior knowledge and that because of his poor health he could no longer stay in the detention facility. On the same day the Kirovskiy District Court examined the petition. It noted that the existence of the applicant’s disease (essential hypertension) was undisputed. However, it had not prevented him from staying in detention. The court further noted that the applicant had not showed up on several occasions in 2001 because of his illness and a decision to remand him in custody had been made. As at that time the court did not know whether the applicant was represented and by whom and as the applicant had defaulted again, legal-aid counsel had been appointed to represent him. Thus, the decision remanding him in custody had been lawful and justified. The court rejected the petition for release for the following reasons: “The court considers it inopportune to impose a preventive measure other than detention on remand, not only with a view to enforcing the conviction, but also because the serious and particularly serious criminal offences imputed to [the applicant] encroach on public health, which is an important protected interest, and present a heightened public danger. Moreover, the court considers that, if released, [the applicant] would have an objective opportunity to interfere with the establishment of the truth and abscond trial.” On 14 May 2002 the Rostov Regional Court upheld that decision. On 15 June 2002 the applicant lodged appeals against the decisions of 17   May and 5 June 2001, claiming that he had only received their copies on 25   June 2002. On 25 June 2002 the appeals were disallowed as the applicant had missed the time-limit for lodging them and there were no valid reasons for extending the time-limit, given that the applicant could have inquired about their contents immediately after his apprehension in 2001. On 1 July 2002 the Kirovskiy District Court extended the applicant’s detention by three months, until 1 October 2002. It held that the applicant’s release would be “contrary to the purposes of enforcing the conviction” and noted the public danger of the offences imputed to him. It also determined that the applicant might abscond, as he had already done before, or interfere with judicial proceedings. On 13   August 2002 the Rostov Regional Court found that decision lawful and justified. On 25 September 2002 the Kirovskiy District Court ordered a new extension of the applicant’s detention until 1 January 2003. It referred, as before, to the need of enforcing the conviction, the public danger of the imputed offences, and the applicant’s potential to abscond, having regard to his previous conduct. It also noted that, if released, the applicant would be able to interfere with the trial, as his position was “objectively incompatible with that of a majority of witnesses”. On 12   November 2002 the Rostov Regional Court upheld that decision on appeal. On 25 December 2002 the Kirovskiy District Court extended the applicant’s detention on remand until 1 April 2003 for the same reasons as before. On 25 February 2003 the Rostov Regional Court upheld the decision. On 25 March 2003 the Kirovskiy District Court extended the applicant’s detention on remand until 1 July 2003 for the same reasons as before. On 27   May 2003 the Rostov Regional Court upheld the decision. On 1 July 2003 the Kirovskiy District Court convicted the applicant of unlawful possession of drugs and ammunition and sentenced him to three years and one month’s imprisonment. The applicant was released on or about 23 July 2003 since the time he had served in detention was held to credit towards the sentence. 2.     Conditions of the applicant’s detention The applicant was detained in remand prison no. IZ-61/1 of Rostov-on-Don ( СИЗО ИЗ-61/1 г. Ростова-на-Дону ) from 29 April 1998 to 26 July 1999, from 14 January to 24 January 2000, from 13 September 2001 to 8   August 2002 and from 14 November 2002 to 23 July 2003. The parties have disputed the actual conditions of the applicant’s detention in remand prison no.   IZ-61/1 of Rostov-on-Don. (a)     The position of the applicant (i)     Cell population and surface From 13 September 2001 to March 2002 the applicant stayed in cell no.   33 which measured seven sq. m and housed five or six, and only rarely four, prisoners. From March to July 2002 and then after 7 August 2003 the applicant was held in cell no.   168. It measured thirty sq. m and housed fifteen to twenty inmates. On 31 July 2002 the applicant and twelve other prisoners were transferred to cell no.   6 located in the basement. This cell measured twelve sq. m. Given an insufficient number of beds in all the three cells inmates had to sleep in shifts. The applicant also submitted that on several occasions he had been placed in the “assembly” cell ( сборное отделение ) as a means of disciplinary punishment. In particular, he spent there fifteen hours on 5   March 2003. The cell measured one sq. m and had no windows, no ventilation system, no drinking water and no place for rest. No access to toilet was allowed. (ii)     Sanitary conditions and installations, temperature and water supply The applicant submitted that access to fresh air and day light to the cells had been severely restricted because of thick metal bars on the window. In addition, windows had not been glazed and it had been cold in winter and hot, stuffy and excessively damp in summer. The lavatory pan had not been shielded from the living area and had been within 0,5 or 1 m from the dining table. In cell no.   6 the lavatory pan and wash basin had no flush. All cells were infested with cockroaches, bugs, bed lice and itch-mites.   The bedding was rarely washed. The cells were never sanitised, no disinfectant was distributed and the use of powder detergent, immersion heaters and fridges were prohibited. The applicant also submitted that the plaster on the walls of the remand prison had contained a poisonous and toxic substance.   (iii)     Medical treatment of the applicant The applicant submitted that he had suffered from hypertension of a mild degree which reached a severe level during his detention. In July 2002 the applicant had a heart attack. He submitted that he had not received medical assistance and had been taken to prison hospital no.   UCH-398/19 only two days after the heart attack. The applicant submitted that from 14 November to 24 December 2002 he had received no medical treatment, despite the fact that a specific course of treatment had been indicated in the prison hospital. Because of the applicant’s poor state of health the trial court had to call the ambulance in the hearings. The court several times refused the applicant’s request for urgent hospitalisation recommended by the doctors, referring to the fact that he was being provided with medical assistance at the remand prison. The applicant submitted that the medical assistance at remand prison no.   61/1 had been inadequate. In particular, on 5 March 2003 the applicant had a hypertension stroke but no medical assistance was rendered.   (b)     The position of the Government (i)     Cell population and surface Relying on the certificate issued by the remand prison governor on 14   November 2005, the Government submitted that cell no.   33 measured ten sq. m and had been equipped with four beds. At the material time it housed on the average three inmates. Cell no.   168 measured thirty sq. m, had ten beds and housed eight inmates on the average. Cell no.   6 measured fifteen sq. m and was equipped with five beds. At the time cell no.   6 had housed on the average four inmates. The Government submitted that in each of the cells the applicant had been provided with an individual bed and bedding. As regards the applicant’s placement in the “assembly” cell, the Government submitted that the applicant had been placed in the “assembly” cell only once, on 5 March 2003. The cell measured three sq. m. The Government produced a letter sent on 14   April 2003 by a deputy Rostov Regional prosecutor to the prison governor, which read as follows: “On 5 March 2003, following [the applicant’s] refusal to comply with an order of the remand prison administration [...] the assistant head of the remand prison [...] ordered to place [the applicant] in one of the assembly cells of remand prison no.   IZ-61/1 in contravention of [the Russian law]. On the basis of this unlawful order the head of the assembly department [...] placed [the applicant] in an assembly cell where he stayed for more than three hours enduring hardship incompatible with the [Russian] legislation and universal norms and rules. [The cell] was neither equipped with toilet facilities nor did it have water supply or other items prescribed [by Russian law]. In essence, the applicant was placed in the assembly cell as a means of punishment which was not prescribed by Russian law. ... I propose: 1. to examine this letter and take measures in order to avoid repetition [of similar violations]; 2. to bring the assistant head of the remand prison and the head of the assembly department to disciplinary responsibility.” (ii)     Sanitary conditions and installations, temperature and water supply Relying on the certificates issued by the remand prison governor on 14   and 15 November 2005, the Government submitted that the cells were equipped with a lavatory pan and wash basin, which were in a satisfactory sanitary condition. Inmates were regularly provided with clean bedding. The cells were ventilated through the windows which were not covered with metal shutters. Each cell also had a ventilating shaft. Central heating devices were installed in the cells, which were also equipped with lamps which functioned day and night. The cells were fumigated once a month. Relying on the certificate issued on 24 May 2006 by the remand prison governor, the Government submitted that the plaster on the cell walls contained no poisonous or toxic substance. The Government did not submit any documents concerning the sanitary conditions in the cells between 2001 and 2003. (iii)     Medical treatment of the applicant The Government submitted no information on the issue of the applicant’s medical treatment. 3.     Criminal proceedings against the applicant (a)     First conviction The criminal proceedings in the applicant’s case commenced on 19   March 1995. On 22 July 1998 the prosecutor’s office sent the bill of indictment to the Kirovskiy District Court of Rostov-on-Don On 15 October 1998 the Kirovskiy District Court remitted the case to the prosecutor’s office for an additional investigation. On 8 December 1998 the prosecutor’s office transmitted the case to the Kirovskiy District Court. On 22 January 1999 the hearing was adjourned until 5 March 1999 because the judge was involved in other proceedings. On 9 March 1999 the Kirovskiy District Court remitted the case to the prosecutor’s office for an additional investigation. On 6 August 1999 the prosecutor’s office transmitted the case to the Kirovskiy District Court. On 15 September 1999 the hearing was adjourned until 19 October 1999 because of the judge’s illness and as the applicant’s counsel could not appear. On 16 November 1999 the Kirovskiy District Court ordered to stay the proceedings pending the applicant’s convalescence as his state of health had deteriorated. On 14 January 2000 the proceedings were resumed. On 24 January 2000 the Kirovskiy District Court found the applicant guilty of unlawful possession of ammunition and drugs and gave him a suspended sentence of three years’ imprisonment, conditional on two years’ probation. The applicant was released on a written undertaking not to leave the city. On 29 March 2000 the Rostov Regional Court quashed the conviction and remitted the case to the first-instance court for re-examination. (b)     Second conviction On 8 June 2000 the Kirovskiy District Court ordered to stay the proceedings because of the applicant’s illness. On 17 May 2001 the Kirovskiy District Court resumed the proceedings. On the same day the court ordered to detain the applicant on the ground that he was charged with serious and particularly serious criminal offences. Following the applicant’s failure to appear in the hearing on 5 June 2001, on the same day the Kirovskiy District Court ordered to put the applicant’s name on the list of fugitives from justice. The hearing was conducted in the presence of legal-aid counsel Mr G. who had been appointed to represent the applicant. On 13 September 2001 the police apprehended the applicant. Between 3 October 2001 and 21 May 2002 the trial court adjourned the hearings twelve times because the applicant’s counsel could not appear and the applicant requested additional time to study the case file. During the same period one hearing was adjourned for two weeks because the judge was involved in another case. From 21 May to 1 July 2002 the proceedings were stayed because the case file was still in possession of the Rostov Regional Court following the examination of the applicant’s appeal complaint of his detention on 14   May 2002 (see above). From 14 August 2002 to 28 November 2002 the proceedings were stayed because of the applicant’s illness. On 28 November 2002 the hearing was adjourned until 17 December 2002 because the applicant’s counsel did not appear. On 17 December 2002 the hearing was adjourned until 8   January 2003 because of the applicant’s illness. On 1 July 2003 the Kirovskiy District Court found the applicant guilty of unlawful possession of drugs and ammunition and sentenced him to three years and one month’s imprisonment. The court held to credit the time served from 20 to 23 March 1995, from 29   April 1998 to 26 July 1999, from 14 to 24 January 2000 and after 13 September 2001 towards the sentence. It appears that he did not appeal against the conviction. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention about the allegedly inhuman and degrading conditions of detention in cells nos. 6, 33 and 168, in the “assembly” cell of remand prison no. 61/1 of Rostov-on-Don and about the lack of medical treatment at remand prison no.   61/1. 2.     The applicant complained under Article 5 §§ 1 (c) and 4 that the decision of 25 June 2002 to disallow his appeals against the decisions of 17   May and 5 June 2001 as time-barred was arbitrary and that his arrest on 13 September 2001 had been unlawful. 3.     The applicant complained that the decisions extending his detention on remand had not been founded on sufficient grounds. In substance he relied on Article 5 § 3 of the Convention. 4.     Furthermore, he asserted that the reference to the need to secure the conviction in the decisions of the Kirovskiy District Court of 1   July, 25   September and 25   December 2002 amounted to a prejudgment of the merits of the charge against him, in breach of the requirements of Article 6 §§ 1 and 2 of the Convention. 5.     The applicant complained under Article 6 §§ 1 and 3 (b) and (c) of the Convention about the unexpected change of legal-aid counsel in the hearing of 5 June 2001 and about the insufficient reasoning of the decision of 5   June 2001. 6.     The applicant complained under Article 6 § 1 about an excessive length of the criminal proceedings. 7.     The applicant complained under Article 14 of the Convention that the remand prison administration unlawfully withheld the documents on his disability from the authority competent to decide on his disability pension. THE LAW 1.     The applicant complained that the conditions of his detention in cells nos. 6, 33 and 168 and in the “assembly” cell of remand prison no. IZ-61/1 amounted to inhuman and degrading treatment in violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government pointed out that the applicant had never complained about the conditions of his detention to a court. In particular, he never claimed compensation in civil proceedings on the basis of the prosecutor’s letter of 14   April 2003 concerning the applicant’s detention in the “assembly” cell. The Government further submitted that a sanitary inspection carried out in November 2005 had considered the sanitary conditions in cells no.   6, 33 and 168 adequate. The fact that the applicant had less than 4 sq. m of personal space in each of those cells could not by itself serve as a basis for a finding of a violation of Article 3 of the Convention because the other aspects of the applicant’s detention had been satisfactory. In the Government’s view, overcrowding was a general problem in many member States of the Council of Europe. The applicant submitted that he had unsuccessfully complained about the appalling conditions of his detention to various domestic authorities and described the conditions in remand prison no.   61/1 in his submissions to the domestic courts. He had not lodged a separate complaint with a court because he considered that such a complaint would not have any prospect of success. The applicant maintained that the cells had at all times been severely overcrowded, that the sanitary conditions in the cells had been appalling and that he had had no adequate medical assistance. As regards the applicant’s detention in cells nos.   6, 33 and 168 the Court observes that the Government did not demonstrate what redress could have been afforded to the applicant by a court, taking into account that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not only concern the applicant’s personal situation (see Benediktov v. Russia , no. 106/02, §   29, 10   May 2007, Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18   September 2001 and Mamedova v. Russia , no. 7064/05, §   57, 1 June 2006). As regards the Government’s argument that the applicant could have lodged an action before a court claiming compensation for the unlawful placement in the “assembly” cell, the Court observes that the prosecutor’s letter had been addressed to the remand prison governor and that there is no indication that it had been communicated to the applicant before the institution of the Strasbourg proceedings. Furthermore, the Government did not specify the civil-law provision by operation of which the internal letter could have given the applicant a cause of action. These complaints therefore cannot be rejected for a failure to exhaust domestic remedies. The Court considers, in the light of the parties’ submissions, that the present complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The applicant complained that the decision of 25 June 2002 to disallow his appeals against the decisions of 17 May and 5 June 2001 as time-barred was arbitrary and that his arrest on 13 September 2001 had been unlawful. He relied on Article 5 §§ 1 (b) and 4 of the Convention, which, in the relevant part, read as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b)     the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law... ...   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 notes, with regard to the applicant’s arrest on 13   September 2001 and the ensuing detention, that the alleged violations had taken place in 2001, that is, more than six months before the applicant introduced his application on 29 November 2002. The Court also notes that the applicant did not complain about the alleged procedural breaches to a competent domestic authority. As regards the alleged arbitrariness of the decision to disallow the applicant’s appeals against the decisions of 17 May and 5 June 2001, the Court notes that in rejecting the applicant’s complaint the Rostov Regional Court acted within the scope of its power. The decision of 25 June 2002 appears to be well-reasoned and justified. The Court therefore concludes that the applicant’s complaint is manifestly ill-founded. It follows that this part of the application is inadmissible and must be rejected in accordance with Article   35   § 3 of the Convention. 3.     The applicant complained that the decisions extending his detention on remand had not been founded on sufficient grounds. In substance he relied on Article   5   §   3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial...” The Government submitted that the applicant’s detention during the investigation stage had been compatible with the requirements of Article   5   §   3 of the Convention which permitted holding the persons charged with particularly serious criminal offences in custody because of the danger of absconding and the need to prevent the accused from committing further offences. During the preliminary investigation the applicant’s detention was extended on several occasions not only because of the gravity of the charges against him but also because of his failure to respect the undertaking not to leave the city and his placement on the list of wanted persons in the beginning of the preliminary investigation. Furthermore, there had been indications of the applicant’s continued involvement in drug dealing even after the charges had been brought against him. The Government also submitted that the length of the applicant’s detention was accounted for by the length of the examination of his criminal case, to which the applicant contributed as he often defaulted at the hearings. The applicant submitted that his detention was unreasonable because of his poor health and the nature of his offences. The Court considers, in the light of the parties’ submissions, that the present complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. 4.     The applicant complained that in extending his detention the Kirovskiy District Court had prejudged the merits of his case by referring to the need to enforce the conviction. He relied on Article 6 §§ 1 and 2 of the Convention, which, in the relevant part, read as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. The Court notes that the applicant did not raise the issue of the alleged prejudgment in his appeal complaints against the decisions of the Kirovskiy District Court. He has therefore failed to exhaust domestic remedies, as required by Article 35   §   1 of the Convention. It follows that this part of the application is inadmissible and must be rejected in accordance with Article   35   §   4 of the Convention. 5.     The applicant also complained that the change of his legal-aid counsel in the hearing of 5   June 2001 and the decision of 5 June 2001 had been in contravention of the Convention. He invoked Article 6 §§ 1 and 3 (b) and (c) of the Convention, which, in so far as relevant, read as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (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...” The Court observes that the hearing of 5 June 2001 related to the applicant’s placement on the list of fugitives from justice and was taken in the course the trial against the applicant. The Court further observes that the applicant did not appeal against the conviction of 1 July 2003 He has therefore failed to exhaust domestic remedies, as required by Article 35   §   1 of the Convention. It follows that this part of the application is inadmissible and must be rejected in accordance with Article   35 §   4 of the Convention. 6.     The applicant further complained of the fact that the length of the criminal proceedings in his case had been excessive. He relied on Article 6 § 1 of the Convention, which, in the relevant part, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Government submitted that the length of the proceedings had been reasonable, having regard to the placement of the applicant on the list of fugitives, the consistent failures by the applicant and his counsel to attend the hearings, the prolonged illness of the applicant and the applicant’s request for an additional time to study the case file. The applicant contested the Government’s arguments referring to the fact that, even taking into account his own conduct, the overall period of the criminal proceedings in his case remained excessive. The Court considers, in the light of the parties’ submissions, that the present complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35   §   3 of the Convention. No other ground for declaring it inadmissible has been established. 7.     Lastly, the applicant complained that the remand prison administration had unlawfully withheld the documents on his disability from the authorities competent to decide on his disability pension. He relied on Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Court notes that that the applicant did not raise the issues concerning his pension before national courts. He has therefore failed to exhaust domestic remedies, as required by Article 35   §   1 of the Convention. It follows that this part of the application is inadmissible and must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention; Declares admissible, without prejudging the merits, the applicant’s complaints concerning the conditions of his detention in remand prison no.   61/1 of Rostov-on-Don, the allegedly excessive length of his detention on remand and the allegedly excessive length of the criminal proceedings in the applicant’s case; Declares inadmissible the remainder of the application.   Søren Nielsen   Loukis L oucaides   Registrar   President