CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2009

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margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s561C3EA3 { width:193.37pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sFE658DBA { width:226.71pt; display:inline-block }     FIRST SECTION         CASE OF GUBKIN v. RUSSIA   (Application no. 36941/02)                 JUDGMENT       STRASBOURG   23 April 2009     FINAL   23/07/2009   This judgment may be subject to editorial revision. In the case of Gubkin v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 2 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36941/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Aleksandrovich Gubkin (“the applicant”), on 18 September 2002. 2.     The applicant, who had been granted legal aid, was represented by Ms   L. Rusakova, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3.     On 13 September 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 4.     The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1975 and is currently serving a sentence of imprisonment. A.     The applicant’s arrest on suspicion of drug trafficking and detention 6.     On 10 June 1998 the applicant was arrested on suspicion of drug trafficking. 7 .     On 11 June 1998 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 0.26 grams of opium. On the same day the Prosecutor of the Voroshilovskiy District of Rostov-on-Don remanded the applicant in custody. The Prosecutor referred to the applicant’s criminal record and the risk of his committing other crimes. B.     Charges of kidnapping, unlawful entry into a home and extortion, ensuing detention and conviction 8.     On 6 August 1998 the applicant was also charged under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code with kidnapping, unlawful entry into a home and extortion. The case was joined to the case concerning drug trafficking. 9 .     On 10 August, 9 September and 5 November 1998 the applicant’s detention was extended until 10 September, 10 November and 10 December 1998 respectively, in accordance with Article 97 of the RSFSR Code of Criminal Procedure. Consideration had been given to the gravity of the charges against the applicant and information about his personality, including his criminal record. 10.     On 1 December 1998 the prosecution dropped the charges of kidnapping, unlawful entry into a home and extortion for lack of proof. C.     Conviction for drug trafficking 11.     On 10 December 1998 the supervising prosecutor approved the bill of indictment and the case against the applicant was sent to the Voroshilovskiy District Court of Rostov-on-Don for trial. 12 .     On 10 January 1999 the Voroshilovskiy District Court of Rostov-on-Don convicted the applicant under Article 228 § 1 of the Criminal Code and sentenced him to one year’s imprisonment. On an unspecified date the conviction became final. The case file contains no further information as to when the applicant completed his sentence. D.     Renewal of the criminal proceedings on suspicion of kidnapping, unlawful entry into a home and extortion, ensuing detention and conviction 13.     On 22 March 1999 the Prosecutor of the Rostov Region quashed the decision of 1 December 1998, and on 24 March 1999 the charges under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code were again brought against the applicant. The prosecutor, having considered the applicant’s criminal record and the gravity of the charges, decided that he should be detained pending trial. 14 .     On 12 April, 18 June, 21 September and 3 December 1999 the applicant’s detention was extended until 18 June, 24 September and 18   December 1999 and 24 March 2000 respectively. Each time, consideration was given to the applicant’s criminal record, the gravity of the charges against him and his active role in a gang. 15.     On 20 March 2000 the case against the applicant was sent to the Rostov Regional Court for trial. 16.     On 29 March 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged” in accordance with Articles 222, 223 and 230 of the RSFSR Code of Criminal Procedure. 17 .     On 13 June 2000 the Rostov Regional Court convicted the applicant and sentenced him to ten years six months’ imprisonment taking into account that he had not fully served a sentence handed down by the judgment of 10 January 1999. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 18.     On 1 December 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged”. 19 .     On 14 May 2001 the Rostov Regional Court convicted the applicant and sentenced him to thirteen years’ imprisonment, but on 16 January 2002 the Supreme Court of Russia quashed the conviction on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 20.     On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”. 21 .     On 1 July 2002 the Rostov Regional Court extended the applicant’s detention until 1 October 2002. It found as follows: “The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes. They have been in custody: ..., [the applicant] – since 10 June 1998, ... The Prosecutor requested that the defendants’ detention be extended by 3 months. Having examined the Prosecutor’s request, having heard the parties to the proceedings, the court considers it necessary to extend the defendants’ detention by 3   months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences. Under Articles 255, 256 of the Russian Code of Criminal Procedure, the defendants’ detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1   October 2002.” 22.     On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified. 23 .     On 1 October and 31 December 2002 and 31 March, 26 June, 25   September and 15 December 2003 the Rostov Regional Court extended the applicant’s detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the above decisions was identical to that applied in the decision of 1 July 2002. 24 .     The applicant appealed against each of the above extension orders to the Supreme Court arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above decisions on appeal. 25 .     In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant’s detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court. 26.     On 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia discontinued the examination of the applicant’s appeal because he had been convicted in the meantime by the Regional Court. 27.     In addition to appealing against the detention extension orders the applicant on a number of occasions in 2003-2004 applied to have the preventive measure changed to a written undertaking not to leave the town. Among his arguments were the rather extended period of time he had spent in detention, his family ties (two minor children and a disabled mother) and his poor health. 28.     On 17 February, 21 June, 25 December 2003 and 2 February and 5   February 2004 the Rostov Regional Court dismissed the applicant’s requests. The court’s reasoning was the gravity of the charges against him. The applicant appealed against all of these decisions to the Supreme Court. 29.     In one decision of 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia rejected all the appeals as follows: “The defendants [the applicant and four other persons] are charged with various crimes, including particularly serious crimes. In the course of the proceedings the court dismissed the above requests. In their appeals the defendants and lawyers ask for the above decisions to be quashed. Having examined the material and the arguments put forward in the appeals, the court finds that the appeal proceedings are to be discontinued, since at the present time the examination of the case has been completed by the pronouncement of the sentence ...” 30.     As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on forty-two occasions. In particular, five hearings were adjourned at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; fourteen hearings were adjourned due to requests by the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; fifteen hearings were adjourned due to the illness of the representatives and their failure to appear before the court, and eight hearings were adjourned due to the illness of the co-defendants or following their complaints concerning their health. 31 .     On 17 May 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., convicted the applicant of fraud, kidnapping, extortion, robbery, deprivation of liberty, unlawful entry into a home and stealing official documents, and sentenced him to eleven years and six months’ imprisonment. 32.     On 10 March 2005 the Supreme Court of Russia comprising three judges upheld the judgment on appeal, but reduced the applicant’s sentence to eleven years’ imprisonment. One of the judges of the Supreme Court had previously examined the applicant’s case on appeal on 2 November 2000 (see paragraph 17 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant’s detention until 26 September 2003 (see paragraphs 23-24 above). One other judge had previously examined the applicant’s case on appeal on 16 January 2002 (see paragraph 19 above). E.     Conditions of the applicant’s detention 33.     As indicated above the applicant was arrested on 10 June 1998. From 15 June 1998 to 25 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don ( Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ ). Throughout this period the applicant was held in twenty-three different cells. 1.     The Government’s account 34.     According to the Government’s observations of 12 December 2007, the cells where the applicant was held measured from 6.6 square metres (the punishment cell) to 61.2 square metres, and provided an average space of between three and four square metres per person. The design capacity of the cells was not exceeded. 35.     Windows in the cells, measuring 1-1.2 by 1.1-1.3 m., were covered with white-painted metal screens, which were removed in December 2002. The cells were illuminated with 60-75 watt filament lamps. 36.     All cells were ventilated by a system of exhaust ventilation. In the summertime the window panes were removed in order to provide better access to fresh air. The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature during the summer was maintained at 22 degrees Celsius, and during winter at 18 degrees Celsius. 37.     The cells were equipped with wash basins, hot and cold water taps and lavatory pans elevated 35 cm above the floor and separated from the main area by a two-metre-high brick partition. The arrangement of lavatory pans assured the detainees privacy when using them. 38.     The cells were equipped with potable water tanks. The quality of the drinking water was regularly checked by the facility’s medical staff. Besides, the detainees were allowed to use electric kettles. 39.     In each cell the applicant had an individual bed and was provided with bedding (a mattress, a blanket, a pillow, two bed sheets and a pillow slip). 40.     The cells were also equipped with cupboards for food storage, tables and benches. 41.     The applicant could take a fifteen-minute shower once a week. After each shower, he received fresh bedding. He was given food three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility. On the days when the applicant was taken to court, hot food was delivered to the courthouse. 42.     The applicant was allowed a daily one-hour outside walk. The exercise yards were equipped with benches and shelters. 43.     The authorities ensured that regular and additional one-off disinfections and disinfestations were carried out in the detention facility. 44.     Upon admission to the detention facility the applicant was examined by a general practitioner, psychiatrist and surgeon, who found his health to be satisfactory. During the detention period the applicant made requests for medical assistance on several occasions, complaining of headaches and general weakness. Following the medical check-ups he always received appropriate treatment. In January 2001 the applicant complained of an earache and was diagnosed with left-side exudative pleurisy. From 23   January to 22 February 2001 he received treatment in the prison hospital. 45 .     In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 22 October and 26 October 2007, 26 May and 27 May 2008, an uncertified and undated table on the number of persons detained in different cells at the same time as the applicant in March 2002–April 2005, the results of a laboratory examination of the microclimate of the cells (illumination, temperature, relative air humidity and air circulation), the results of bacteriological tests following water and sanitary inspections of the detention facility conducted in 2001 ‑ 2005, statements by wardens (although not dated) and persons currently detained in IZ-61/1, a copy of the applicant’s prison card stating that he had been provided with bed sheets, cutlery and clothes, as well as a number of certificates concerning the food ration during the relevant period. 2.     The applicant’s account 46 .     The applicant did not dispute the size of the cells as submitted by the Government. He claimed, however, that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts. 47.     The windows in the cells were either heavily barred (cells nos. 44, 48, 43, 42, 50, 76 and 52), or covered with metal screens (cells nos. 39 and   124), or entirely absent (cells nos. 8, 76 and 74). The metal screens were still in place in 2003. 48.     The arrangement of the bunks in two or three tiers left the detainees very limited space and access to daylight. The artificial light in the cells was on around the clock, and disturbed the applicant’s sleep. 49.     The lavatory in the corner of the cell, which had no flush system, was elevated above the floor and separated by a 1.1-metre partition from the wash basin, but not from the living area. The latter two standards had been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971. 50.     The applicant was never provided with any toiletries. 51.     On the days when the applicant was taken to the courthouse he received no food, since he was taken from his cell before breakfast and brought back after dinner. No food (hot meal or dry ration) was served to the applicant in the courthouse. On such days the applicant was also deprived of outside walks and showers. 52.     The exercise yard was very small and unequipped for physical exercise. The walls of the yard were covered with “ shuba ”, a sort of abrasive concrete lining designed to prevent detainees from leaning against them. 53.     The cells swarmed with cockroaches and bedbugs. Occasionally the detainees were taken to the “blind” cell no. 106 (with no windows, lavatory or water taps) except for two or three of them who stayed behind and treated the cell against bedbugs using a heating lamp or a torch made of newspapers, and against cockroaches using cockroach poison sent to the detainees by their relatives. 54 .     In support of his statements the applicant produced written depositions by three former cellmates, Mr A.R., Mr Y.T. and Mr Y.R. They stated, in particular, that in 2001-2004 cell no. 41, measuring approximately 30 square meters, had housed 45 to 50 inmates at any one time (Mr A.R.’s deposition), and that in 2002-2004 cell no. 46, measuring approximately 40 square meters, had housed over 30 inmates (Mr Y.T.’s deposition) or as many as 85 (Mr Y.R.’s deposition). They also testified that they and the other detainees had slept in shifts. 55.     The Government did not contest that the applicant’s former cellmates were held in the same detention facility as the applicant. II.     RELEVANT DOMESTIC LAW 56.     Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18   December 2001, “the new CCrP”). A.     Preventive measures 57.     “Preventive measures” ( меры пресечения ) include an undertaking not to leave a town or region, personal security, bail and detention (Article   89 of the old CCrP, Article 98 of the new CCrP). B.     Authorities ordering detention 58.     The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6). C.     Grounds for ordering detention on remand 59.     When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 60 .     Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. D.     Time-limits for detention 1.     Two types of detention 61.     The Codes distinguished between two types of detention: the first being “pending the investigation”, that is while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 2.     Time-limits for detention “pending the investigation” 62 .     After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 63.     The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 64 .     Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 65 .     Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 3.     Time-limits for detention “before the court”/“during the trial” 66.     From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). 67 .     Before 14   March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence. 68 .     The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file and to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). E.     Proceedings to examine the lawfulness of detention 1.     During detention “pending the investigation” 69.     Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 76 below) (Article 331 in fine ). 70.     Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10). 2.     During the trial 71 .     Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 72.     At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 73.     An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 76 below). F.     Time-limits for trial 74 .     Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing ( предварительное слушание ); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 75.     The duration of the trial is not limited. 76 .     Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article   374). G.     Composition of the court 77 .     The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15). 78 .     The new CCrP does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 79.     The Federal Law enacting the new CCrP (Law no. 177-FZ of 18   December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing. H.     Conditions of detention 80.     Section 22 of the Detention of Suspects Act (Federal Law no.   103 ‑ FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. III.     RELEVANT INTERNATIONAL DOCUMENTS Conditions of detention 81.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b.     temporary holding facilities for criminal suspects (IVS) 26.     According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45.     It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125.     As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 82.     The applicant complained that his detention from 15 June 1998 to 25   April 2005 in allegedly appalling conditions was in breach 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.” He also claimed that he did not have at his disposal an effective remedy for the violation of the guarantee against ill-treatment, which is required under Article 13 of the Convention: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...” A.     Submissions by the parties 83 .     The Government argued that the applicant had not exhausted the domestic remedies available to him. In particular, he had not complained about the conditions of his detention to a court. Relying on their description of the prison, the Government further asserted that the conditions in it were satisfactory. The conditions complied with the hygienic standards of domestic penitentiary law and fell far short of “inhuman treatment”, as developed in the Convention case-law. During the applicant’s stay in the prison the cells were indeed overcrowded, but this overcrowding was not excessive, and in any event, in each cell the applicant was provided with an individual sleeping place. Lastly, the Government argued that when examining the conditions of the applicant’s detention the Court should only have regard to the period starting from 18 March 2002, claiming that the preceding period fell outside the six-month time limit set out in Article 35 §   1 of the Convention. 84.     The applicant submitted that he had complained about the conditions of his detention to the Prosecutor’s Office, but had received no reply to his complaint. He had also brought this issue before the trial court. The applicant further challenged the Government’s description of the conditions of his detention as factually inaccurate. He insisted that the cells had at all times been severely overcrowded. B.     The Court’s assessment 1.     Admissibility 85.     The Government raised the objection of non-exhaustion of domestic remedies by the applicant. The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about the inhuman and degrading conditions of his detention. Thus, the Court finds it necessary to join the Government’s objection to the merits of the applicant’s complaint under Article 13 of the Convention. 86.     The Government also objected to the examination of the conditions of the applicant’s detention as a continuous situation. The Court has previously established that the continuous nature of detention, even in two different detention facilities with similar conditions and, in particular, severe overcrowding as the main characteristic, warranted examination of the detention without dividing it into separate periods (see Benediktov v. Russia , no. 106/02, § 31, 10 May 2007; Guliyev v. Russia , no. 24650/02, §   33, 19 June 2008; and Sudarkov v. Russia , no. 3130/03, § 40, 10 July 2008). In the present case the applicant was held in the same detention facility uninterruptedly and his descriptions of the conditions of his detention, including extreme overcrowding, did not substantially vary from cell to cell. Adopting the same line of reasoning as in the above-mentioned cases, the Court considers that the applicant’s detention from 15 June 1998 to 25 April 2005 should be examined as a whole without dividing it into separate periods, and that the Government’s objection should, therefore, be dismissed. 87.     The Court further notes that the applicant’s complaints under Articles 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2.     Merits (a)     Article 13 of the Convention 88.     The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, §   157, ECHR 2000-XI). The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law. 89.     The Court reiterates that it has already found a violation of Article   13 on account of the absence of an effective remedy for inhuman and degrading conditions of detention, finding as follows (see Benediktov , cited above, § 29, and Vlasov v. Russia , no. 78146/01, § 87, 12 June 2008): “[T]he Government did not demonstrate what redress could have been afforded to the applicant by a prosecutor, a court or other State agencies, 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 (cf. Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. Russia , no. 7064/05, § 57, 1 June 2006). The Government have failed to submit evidence as to the existence of any domestic remedy by which the applicant could have complained about the general conditions of his detention, in particular with regard to the structural problem of overcrowding in Russian detention facilities, or that the remedies available to him were effective, that is to say that they could have prevented violations from occurring or continuing, or that they could have afforded the applicant appropriate redress (see, to the same effect, Melnik v. Ukraine , no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine , no. 72277/01, § 72, 12 October 2006; and Ostrovar v. Moldova , no. 35207/03, § 112, 13 September 2005).” 90.     These findings apply a fortiori to the present case, in which the Government did not point to any domestic remedy by which the applicant could have obtained redress for the allegedly inhuman and degrading conditions of his detention or put forward any argument as to its efficiency. 91.     Accordingly, the Court rejects the