CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 janvier 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s54D5C7EE { margin-top:18pt; margin-left:29pt; margin-bottom:12pt; text-align:justify; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s45352615 { margin-top:14pt; margin-bottom:14pt; text-align:center; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4B8D41EE { font-family:Arial; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s8E04FC34 { width:195.97pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sF630BFA9 { margin-top:1pt; margin-bottom:14pt; text-align:justify } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } 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 Volokolams