CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juin 2009

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text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIRST SECTION         CASE OF SHTEYN (STEIN) v. RUSSIA   (Application no. 23691/06)             JUDGMENT       STRASBOURG   18 June 2009   FINAL   18/09/2009   This judgment may be subject to editorial revision. In the case of Shteyn (Stein) v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 28 May 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23691/06) 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 and German national, Mr   Yevgeniy Mikhaylovich Shteyn (Stein [1] ) (“the applicant”), on 23 May 2006. 2.     The applicant was represented by Mr E.   Terbalyan and Mr   K.   Filippov, lawyers practising in Tomsk. The Russian Government (“the Government”) were represented by Ms V.   Milinchuk and Mr   A.   Savenkov, former Representative and former acting Representative of the Russian Federation at the European Court of Human Rights respectively. 3.     On 5 December 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 of the Convention) and to grant priority treatment to the application (Rule 41 of the Rules of Court). On the same date, the German Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b). They chose not to avail themselves of this right. 4.     The Russian Government objected to the priority treatment and the joint examination of the admissibility and merits of the application. Having considered the Government’s objections, the Court dismissed them. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1980 and is being detained in Remand Centre IZ-70/1 of Tomsk, Russia. A.     The applicant’s detention 6.     A Ms M named the applicant as her supplier of MDMA pills also known as “ecstasy”. On 9 December 2004 the Sovetskiy District Court of Tomsk authorised a search in the flat where the applicant was living. A pile of documents, cash and pills were seized. On the same day the applicant was arrested on suspicion of supplying 8.86 gm of MDMA to a Mr V (his co-accused in subsequent proceedings). By a decision of 10   December 2004, the Sovetskiy District Court of Tomsk authorised his detention. His detention was then extended on 4 February and 6 April 2005 until 9 April and 2 June 2005 respectively. His offer of a deposit of 150,000 Russian roubles (RUB) as surety for bail was refused. 7 .     On 18   May 2005 the applicant was charged with smuggling 77 gm of MDMA and 31 gm of amphetamine from Germany to Russia. His detention was extended on 31 May and 25   July 2005 until 2 August and 2 September 2005 respectively. 8.     The investigator sought another extension, explaining that she needed more time to receive the forensic reports, list the full charges against the applicant and his co-accused, allow them to study the reports and other materials in the case file and draft a bill of indictment. On 31   August 2005 the Oktyabrskiy District Court of Tomsk decided to keep the applicant in detention until 2   December 2005 (that is for a total period of eleven months and twenty-four days). The court ruled in the following terms: “The time-limit for the preliminary investigation has not expired. The court grants the investigator’s request for an extension until 2 December 2005 so as to enable her to take certain investigative measures. The court takes into account the gravity of the charges, the exceptional complexity of the case in view of the number of persons involved in the drug trafficking and the close link between them. In addition, given that [the applicant] has both Russian and German nationality but has no permanent place of residence in Russia, the court finds that there are reasons to believe that he would abscond, fearing an eventual custodial sentence, and would then obstruct the proceedings...In view of the above, a less stringent measure of restraint would be inappropriate.” 9 .     On 25 October 2005 the applicant was charged with membership of a criminal gang, a further count of drug smuggling and a further count of supplying drugs committed as part of an organised group. 10 .     The investigator sought a further extension, stating in her request that the applicant’s guilt had been proven; however, it was impracticable to complete the investigation before 2 December 2005. On 30 November 2005 the Tomsk Regional Court extended his detention until 2 January 2006 and held as follows: “On 25 November 2005 investigator Matveyeva, having obtained approval from the Tomsk regional prosecutor, lodged a request dated 24   November 2005 asking the court to extend [the applicant’s] detention for one month, increasing the period of detention to twelve months and twenty-four days, that is until 2 January 2006...The accused was given access to the case file more than thirty days before the expiry of the maximum period of detention (28 October 2005). However, thirty days were not sufficient for the accused and the reasons for his detention persist. Thus, given the gravity of the charges, the specific circumstances of the case and his personality, as well as the lack of a permanent place of residence in Russia and the possibility that he would flee justice and resume his criminal activity, he should remain in detention.” The applicant appealed and sought his release on bail, referring to the fact that the investigation had been completed. The Supreme Court of the Russian Federation upheld the extension order on 27 February 2006. 11 .     On 29   December 2005 the Regional Court extended the applicant’s detention for two months, reproducing the reasoning of the earlier orders. It held that the relevant period would end on 2   March 2006 and that the total period of detention would amount to fourteen months and twenty-four days. 12.     On 23 January 2006 the applicant was committed for trial at the Regional Court.   On 7   February 2006 the Regional Court decided to maintain the applicant in detention pending trial (see paragraph 57 below), endorsing the reasoning of the pre-trial detention orders. It did not set any time-limit. 13 .     On 13   February 2006 the judge held that a co-defendant’s (Mr Z) counsel had previously represented another person when the latter testified against the defendants. The judge concluded that Z’s defence rights had been affected, and returned the case to the prosecutor for “remedying the violation” with reference to Article 237 of the CCrP (see paragraph 58 below). Without setting any time-limit, the judge also decided to maintain the applicant in detention. The prosecution appealed against the decision to return the case to the prosecutor. The appeal was rejected by the Supreme Court on 27 April 2006. Having noted that the applicant did not challenge the above remand decision, the Supreme Court upheld the preventive measure. The case file was returned to the prosecutor and then the investigator on 29   and 31   May 2006 respectively. 14.     In the meantime, on 14 March 2006 the Supreme Court upheld the order of 29   December 2005 (see paragraph 11 above) in the following terms: “...the investigator’s extension request had been approved by the deputy Prosecutor General...In view of the gravity of the charges against Mr Sergeyev ...the Regional Court found no reasons for release... the detention was extended to allow him to study the case file.” 15.     On 31 May 2006 the applicant asked the governor of the remand centre to release him, considering that there was no valid court order authorising his continued detention. The governor replied that the applicant’s detention was lawful under the order of 13 February 2006. 16 .     On 1 June 2006 the investigator removed Mr F, counsel for the applicant, from the proceedings on the ground that he had previously advised another party to the proceedings. The investigator appointed Mr S instead. On 2 June 2006 the Regional Court dismissed an objection by the applicant to this new counsel (see also paragraph 19 below). Having heard the parties, it extended, with reference to Article 109 of the CCrP, the applicant’s detention until 29   July 2006 so that the total period of detention under Article 109 of the CCrP would be sixteen months and twenty-four days. The court stated as follows: “...the reasons for the repeated extensions of [the applicant’s] detention still obtain; he has been charged with various offences...when he was arrested he had his permanent place of residence in Germany..., the court considers that if at large [the applicant] would abscond or continue his criminal activity...In view of the gravity of the charges against him and because the investigator needs more time, there are exceptional circumstances warranting the extension of [the applicant’s] detention...” 17 .     On 5 June 2006 the applicant appealed against that extension order. He submitted further statements of appeal on 7, 13 and 19 June 2006. According to the Government, copies of those statements were sent to “the other parties to the proceedings” for comment by 21 July 2006. On 26 July 2006 the detention file was dispatched from Tomsk to Moscow, where the Supreme Court is situated. The latter received it on 3 August 2006. On 22   September 2006 the Supreme Court upheld the extension order of 2 June 2006 endorsing its reasoning. It indicated that the detention order had been issued under Article 109 § 7 of the CCrP and the relevant request had to be approved by the regional prosecutor, which had been done. It accepted that the first-instance court had established the exceptional circumstances warranting an extension within the eighteen months’ statutory period. It appears that the applicant obtained a copy of the appeal decision on 23   November 2006. 18.     In the meantime, on 26 July 2006 the Regional Court extended the applicant’s detention further to 29   September 2006 with reference to Article 109 § 7 of the CCrP. It appears that the judge refused to consider his offer of RUB 340,000 as surety for bail.   On 7   September 2006 the prosecutor resubmitted the criminal case for trial. 19 .     On 19 September 2006 the judge returned it to the prosecutor again indicating that the applicant had not been afforded adequate time to choose counsel on 2 June 2006 (see paragraph 16 above). On 26 September 2006 the Regional Court extended the applicant’s detention until 29 November 2006. On an unspecified date the case was resubmitted to the Tomsk Regional Court for trial. On 9   November 2006 the Regional Court scheduled a preliminary hearing on 20 November 2006, in particular in order to decide on the detention issue. On the latter date, the judge returned the case to the prosecutor with reference to Article 237 of the CCrP and ordered that the applicant be kept in detention considering that he would abscond, if at large. 20 .     On 28 November 2006 the Regional Court adjourned the proceedings and decided to keep the applicant and co-accused Z in custody considering that they would abscond, if at large. The applicant appealed, contending that there had been no ascertainable facts confirming the risk that he would abscond and referring to his conditions of detention. It is unclear whether that appeal was examined. 21 .     On 11 December 2006 the Supreme Court upheld the detention order of 26 September 2006 (see paragraph 19 above), finding, inter alia , that the prosecution’s failure to observe the seven-day time-limit for lodging that extension request had not amounted to a serious breach of law which would warrant annulment of the order. 22 .     On 4 May 2007 the Regional Court examined again the issue of the applicant’s detention. As the applicant’s new counsel T. was away from 23   April to 7   May 2007, the Regional Court appointed counsel K. for the duration of the detention hearing. According to the applicant, the hearing had initially been scheduled for 14 May 2007; he was unaware that it had been brought forward to 4 May; counsel T., who had been notified of that change only on 3 May 2007, was unable to attend. Nevertheless, the Regional Court extended the applicant’s detention until 7 August 2007 stating as follows: “...[the applicant’s] detention should be extended due to the gravity of the charges because prior to his arrest he had no stable work; he is acquainted with many witnesses and might therefore abscond, influence the witnesses or obstruct the proceedings.” On 16   July 2007 the Supreme Court upheld the detention order, reproducing verbatim the reasoning of the Regional Court. 23.     On 31 July 2007 the Regional Court rejected the applicant’s application for release and extended his detention until 7 November 2007 endorsing the previous orders and stating that it would be impracticable to complete the trial before 7 August 2007 because the trial court was attempting to secure the presence of witnesses residing in another region. The applicant’s counsel appealed on 8 August 2007. According to the Government, a copy of the statement of appeal was sent to “the other parties to the proceedings” for comment by 23 August 2007. The applicant submitted an additional statement of appeal on 15 August 2007. According to the Government, a copy was sent to the parties on 20 August 2007 for comment by 3 September 2007. On 4 September 2007 the detention file was dispatched to the Supreme Court. The latter received it on 14 September 2007. Due to a typographical error in the detention order of 31   July 2007, the Supreme Court returned the file to the Regional Court. The file was dispatched to the Supreme Court on 8 November 2007. It was received there on 16   November 2007. On 6 December 2007 the Supreme Court upheld the detention order of 31 July 2007. 24 .     In the meantime, on 6 November 2007 the Regional Court extended the applicant’s detention for three months, that is, until 7 February 2008. On 31 January 2008 the Regional Court indicated that it would be difficult to complete the trial before 7 February 2008 in view of the need to ensure the attendance of witnesses living in other towns or persons in detention. The judge accordingly extended the applicant’s detention for three months (until 7 May 2008) and held as follows: “...[the applicant’s] detention should be extended in view of the gravity of the charges relating to drug trafficking, which represents a high level of public danger. Taken into account also are the fact that [the applicant] had had no permanent occupation prior to [his] arrest; [he] is acquainted with many witnesses in the case and can thus flee justice, put pressure on the witnesses, obstruct the course of the proceedings. [The applicant] had had no lawful sources of income before his arrest, had previously been prosecuted for unlawful dealing in firearms; he had been granted bail instead of being placed in pre-trial detention; however he is being prosecuted again for even more serious offences. The matter relating to the conditions of detention in the remand centre is outside the jurisdiction of this court.” The applicant appealed indicating that between 1999 and 2004 he had been employed by a private company in Germany; that he had obtained employment soon after his arrival in Tomsk; that all witnesses in relation to the charges against him had already been examined at the trial; that he previously had respected the bail conditions. On 14   April 2008 the Supreme Court upheld the detention order. It indicated that after the expiry of the six-month period from the date when the case had been submitted to the trial court, the latter could extend the defendant’s detention pending trial. The applicant was accused of serious and very serious criminal offences. It held as follows: “The detention order indicates specific and real circumstances indicating that a less stringent measure of restraint would allow [the applicant] to flee justice, put pressure on the witnesses and obstruct the course of the proceedings.” 25.     The applicant lodged an application for release indicating, inter alia , that his German passport had expired; that before his arrest he had been residing at the same address where the search had been carried in 2004. On 28 April 2008 the trial judge rejected the application for release and extended the applicant’s detention for three months. He relied on the same grounds as before, also referring to a forensic examination that had been ordered and completed, and to the necessity of completing the trial. The judge rejected as false a certificate produced by the applicant in order to confirm his previous residence in the town of Tomsk. 26.     It appears that two of four defendants, including the applicant and co-accused Z, were kept in detention throughout the investigation and pending the trial. Co-accused L and V were at large. Most of the charges concerned defendants L and Z. 27.     On 30 July 2008 the Regional Court convicted the applicant, apparently as charged, and sentenced him to twelve years’ imprisonment. B.     Criminal proceedings against the applicant 28.     As indicated above (paragraph 6), the applicant was arrested on 9   December 2004 on suspicion of drug trafficking. Between December 2004 and August 2005 the investigators identified further episodes of drug trafficking.   The investigations were finalised in October 2005 and from 1   November 2005 to 11   January 2006 the applicant studied the case file. 29.     On 23 January 2006 the case was sent to the Tomsk Regional Court for trial. On 13 February 2006 a judge in the Regional Court decided to return the case to the prosecutor on account of a violation of the procedural rights of the applicant’s co-accused. On 27 April 2006 the Supreme Court rejected an appeal by the prosecution and upheld that decision. 30 .     From 7   June to 9 August 2006 the applicant and his counsel again studied the case file. By an order of 16 August 2006, the Kirovskiy District Court decided that the applicant should complete his study of the case file within nine working days. 31.     Eventually, the trial started on 28 November 2006. Four persons, including the applicant, were, according to the Government, tried in relation to fifty episodes of criminal activity between 2002 and 2005. 32 .     According to the applicant, one hearing was held in December 2006, four in January 2007, seven in February 2007, three in March 2007, two in April 2007, two in May 2007, three in June 2007, one in July 2007, one in August 2007, two in September 2007, one in October 2007, four in November 2007, three in December 2007, four in January 2008, three in February 2008, four in March 2008, one in April 2008 and one in May 2008. 33 .     Thirty-six persons were questioned as witnesses and voluminous written evidence was presented at the trial. On 11   September 2007 the prosecutor completed the presentation of evidence. The defence produced evidence from 2 October 2007 to 10   January 2008. On unspecified dates, the prosecutor dropped the charge of membership of a criminal gang in respect of the applicant and the charge of drug trafficking in relation to one episode. On 30 July 2008 the Regional Court convicted the applicant on the remaining charges and sentenced him to twelve years’ imprisonment. The applicant appealed. On 5 March 2009 the Supreme Court of Russia amended the trial judgment and reduced the applicant’s sentence to eleven years’ imprisonment. C.     Conditions of detention 34.     From 10 December 2004 to 11 April 2005 the applicant was detained in Remand Centre IZ-70/1 of Tomsk. From 11 to 25 April 2005 the applicant was kept in Tomsk Prison no.   3, part of which was used as a remand centre. He maintained that, after his arrival there, his head was shaven. A body search disclosed that the applicant had been in possession of a razor blade. On 12   April 2005 the governor of the remand centre ordered his placement in a punishment cell for ten days. 35.     Since 25 April 2005 the applicant has been in Remand Centre IZ-70/1. 1.     The applicant’s account 36 .     The initial description of the conditions of detention made by the applicant in his application to the Court in 2006 is as follows: “The applicant spent seven months in a cell measuring five square metres and designed for two persons. The toilet was not separated from the living area and offered no privacy; there was no lavatory and the table was placed next to the toilet. The following five months he spent in a cell measuring eighteen square metres together with eleven to thirteen detainees. The detainees had to sleep in shifts because the cell had only eight beds. The radio and light remained on day and night. He was allowed to take a shower once a week. Subsequently, he was detained in a cell measuring seven square metres together with three to five detainees. The cell had only three beds and the detainees had to sleep in shifts. All cells were infested with lice and bugs.” 37 .     The applicant subsequently submitted that from 10 to 12 December 2004 he was kept in cell no.   90 housing six to eight persons. No mattresses, bedding or tableware were supplied. From 12 to 15 December 2004 he was in cell no.   33 together with another inmate. The lavatory was not separated from the living area; there was no sink so he had to wash himself using a tap above the lavatory. From 15 December 2004 to 11 April 2005 he shared cell no.   41 with another detainee. The material conditions were similar to those in cell no.   33. From 25 April to 29 June 2005 the applicant was in cell no.   41 with another person. From 29 June to 11 October 2005 he was in cell no.   280 which then housed four to eleven persons. The cell had ten beds, one of which was used to store the detainees’ belongings. During the summer period the temperature in the cell reached +50 C. From 11 October to 8 December 2005 the applicant was in cell no.   267 which then housed ten to fourteen persons. The cell had nine beds, one of which was used to store the detainees’ belongings. The windows were covered with metal shutters barring access to natural light. During the winter period the temperature in the cell fell to +10 C. From 8 December 2005 to 10 January 2007 the applicant was kept in cell no.   184 which then housed three to five persons. It had three beds. From 10 January 2007 the applicant was in cell no.   183 which housed three to seven persons. The cell had six beds, one of which was used to store the detainees’ belongings. The lavatory was not separated from the living area, so the person using it could be watched by other detainees and male and female wardens. The lavatory was next to a bed. 38.     The applicant also indicated that there was no sink in cells nos.   33 and 41; the lavatories in cells nos.   33, 41 and 183 were not separated from the living area; the living space in cells nos.   33, 41, 267, 184 and 183 was particularly limited. The air in the cells was stuffy and filled with smoke. All cells were infested with lice, bedbugs and cockroaches. During the summer periods there were also gnats and flies, possibly because the building was next to a pigsty. The detainees had no alternative but to oppose the sanitary measures because of the difficulties of bearing the chemical odours and given the small size of the cells and lack of proper ventilation. 39.     The applicant was not allowed to take a shower more than once per week. The distribution of items of hygiene started only in 2007. 40.     The applicant submitted six colour photographs showing the interior of cell no.   183 situated in building no.   4 of the remand centre: a lavatory and a sink were situated next to one set of three-tier bunk beds. The lavatory had no flushing system and no lid; it was not separated in any way from the remaining space of the cell. 2.     The Government’s account 41.     The Government submitted that according to its design capacity, the remand centre could house 1,550 inmates. Between 2004 and 2007 the number of inmates at the remand centre varied between 1,107 and 1,532 persons. 42.     Between 10 December 2004 and 11 October 2005 the applicant was kept in cells nos. 33, 41, 90 and 280. From 10 to 12 December 2004 he was placed in cell no.   90 measuring 22.5 square metres and then housing six persons (including the applicant). With reference to an extract of 13   December 2004 from the relevant logbook, the Government asserted that from 12 to 15 December 2004 the applicant had been alone in cell no.   33 measuring 4.6 square metres. With reference to an extract of 16 April 2005 from the relevant logbook, the Government asserted that from 15 December 2004 to 11 April 2005 he was in cell no.   41 measuring 4.6 square metres and then housing two persons (including the applicant); from 25 to 27 April 2005 he was alone in that cell; from 27   April to 29 June 2005 he shared the cell with another inmate. 43.     The applicant was also kept in cell no.   280 measuring 15.1 square metres and having ten beds. With reference to an extract of 26 September 2005 from the relevant logbook, the Government asserted that its cell population was as follows: From 29 June to 12 July 2005 – eleven persons; From 12 to 20 July 2005 – seven persons; From 20 to 26 July 2005 – six persons; From 26 to 28 July 2005 – seven persons; From 28 to 30 July 2005 – six persons; From 30 July to 9 August 2005 – seven persons; From 9 to 16 August 2005 – eight persons; From 16 to 20 August 2005 – nine persons; From 20 to 31 August 2005 – ten persons; From 31 August to 13 September 2005 – nine persons; From 13 to 26 September 2005 – ten persons; From 26 to 27 September 2005 – four persons; From 27 September to 5 October 2005 – eleven persons; From 5 to 11 October 2005 – ten persons. 44.     Thereafter, from 11 October to 8 December 2005 the applicant was kept in cell no.   267 measuring eleven square metres and designed for nine detainees. From 8 December 2005 to 10 January 2007 he was kept in cell no.   184 measuring 8.5 square metres. From 10 January 2007 onwards he was in cell no.   183 measuring 9.4 square metres and designed for six detainees. 45.     The applicant was given an individual sleeping berth, a mattress, a pillow and a blanket. 46.     The cells were equipped with a lavatory, which was separated from the living area by a partition of 1.4 or 1.5 metres in height and had a screen. In each cell the applicant was afforded enough space for movement or physical exercise. He was afforded access to various commodities, such as a dining table, lavatory or sink. 47.     He was allowed access to a shower once per week for no less than fifteen minutes. He made no requests for more frequent access to a shower. 48.     During the relevant period(s) no bugs, cockroaches or rats had been detected in the cells. Neither had the detainees made any complaints in that respect. The appropriate sanitary measures were taken on a monthly basis. 49.     The applicant was allowed a daily outdoor walk for no less than one hour. The walks were organised in the courtyards of the remand centre measuring from 22 to 43.6 square metres. 50.     Radio broadcasting was accessible in the cells between 6 a.m. and 10   p.m. The volume could be increased or decreased from a point in each cell. 51.     The cells were equipped with artificial lights adapted for night supervision of the inmates and for prevention of suicide. All cells were equipped with mandatory ventilation which was properly functioning at the relevant time. The cell windows had small air vents. The metal shutters were removed from the windows in 2003. 52.     The remand centre had a centralised heating system which was properly functioning, including during the autumn and winter period. The temperature in the cells did not fall below +18 C. 53.     The applicant underwent regular medical checks which confirmed that he was in good physical condition and had no infection or disease. 54.     According to a certificate of 26 June 2008 issued by the remand centre, a new building no.   5 was constructed in 2004; building no.   2 was renovated in 2006 and 2007, including installations of lavatories, sinks and lights; the roof of building no.   4 was repaired in 2007; and the renovation in building no.   3 was completed in 2008. According to another certificate, cells nos.   33, 41, 90, 183, 184, 267 and 280 were and remain equipped with cold water taps and lavatories separated from the living area by a partition of 1.5   metres in height and a curtain. 55.     Like the applicant, the Government submitted a faxed copy of photos, one of them showing a standard toilet with a curtain; a statement countersigned by a remand centre officer stated that it was cell no.   183. The other photos suggested that similar arrangements were made in cells nos.   33, 41, 184, 261 and 280. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Code of Criminal Procedure (CCrP) 56 .     Pursuant to Article 109 § 1 of the Code, detention of an accused pending investigation should not exceed two months. It may, however, be extended to six months. Further extensions to up to twelve months are possible only in relation to persons accused of serious or very serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator’s request for extension must be approved by the regional prosecutor (§ 2). Further extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of very serious offences, upon an investigator’s request approved by the Prosecutor General or his deputy (§ 3). Extension of detention beyond eighteen months is prohibited and the detainee must be released, unless the court decides to extend his detention to the date when the accused has finished studying the case file and the case has then been submitted for trial (§§ 4 and 8 (1)). After the completion of the investigation, an accused kept in detention must be provided with access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3(§ 5). If such access was given later than that, the detainee must be released after the expiry of the maximum period of detention (§ 6). If the thirty-day time-limit was complied with, but was insufficient for the accused, the investigator, with the approval of the regional prosecutor, may request the court to extend the accused’s detention. Such a request should be submitted no later than seven days before the expiry of the maximum detention period (§ 7). 57 .     Under Article 255 of the Code, after a criminal case has been submitted for trial to a court, the latter may, on the party’s request or proprio motu , vary or annul a measure of restraint in respect of the defendant, including placement in custody or detention pending trial. The period of detention pending trial cannot normally exceed six months from the date when the case was submitted to a court and up to delivery of a judgment in the case. However, after the expiry of that period the trial court may extend the detention of a defendant charged with a serious or very serious offence. Each extension must not exceed three months. 58 .     Under Article 237 of the Code, the trial judge can return the case to the prosecutor for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. The judge must require the prosecutor to comply within five days and must also decide on a preventive measure in respect of the accused. By a federal law no.   226-FZ of 2   December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the accused’s detention with due regard to the time-limits in Article 109 of the Code. B.     Relevant judicial practice 59 .     By a ruling of 10 October 2003, the Plenary Supreme Court provided the courts with guidance on the application of international law, indicating, inter alia , that when deciding matters relating to detention they should take into account that under Article 5 § 3 of the European Convention, a detainee is entitled to trial within a reasonable time or to release pending trial (§ 14 of the Ruling). When deciding on the remand matter, the court should take into account the rights protected by Articles 3, 5, 6 and 13 of the Convention; when examining an application for release or a complaint about the extension of detention the courts should take into consideration the requirements of Article 3 of the Convention (§ 15). 60 .     By a ruling of 22 March 2005, the Constitutional Court examined various provisions of the CCrP concerning detention pending investigation and trial. It held, in particular, that a valid detention order continued to be in force within the time-limit set therein, even when the case progressed from one to another stage of proceedings (§ 3.2 of the Ruling). C.     Criminal Code 61 .     Any period of pre-trial detention shall count towards the sentence of imprisonment (Article 72 § 3). D.     Conditions of detention 62.     Order no. 7, issued on 31   January 2005 by the Federal Service for the Execution of Sentences, deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 63.     The applicant complained that the conditions of his detention in Tomsk Remand Centre amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. He also complained that he had been placed in a punishment cell in Tomsk Prison and that his head had been shaven. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 64.     The Government considered that the applicant’s complaint had concerned only his detention from 25 April 2005 onwards, while he had had no objection to the conditions of detention in the same facility from 10   December 2004 to 11 April 2005. They conceded that the conditions during both periods had been identical. However, they concluded that the applicant had not complied with the six-month rule in respect of the first period. They also contended that he had not complained about the conditions to any public authority, while being represented by counsel in the criminal proceedings. In particular, he could have lodged a claim for compensation in respect of non-pecuniary damage. The Government acknowledged the insufficiency of cell space afforded to the applicant between December 2004 and mid-October 2005. However, they contended that the applicant had been given an individual sleeping berth and bedding. They submitted that the cell-space factor was an insufficient basis on which to conclude that there had been a violation of Article 3 of the Convention as regards Tomsk Remand Centre. As regards Tomsk Prison, the Government submitted that the applicant had been kept there from 11 to 25 April 2005. A body search disclosed that he had been in possession of a razor blade. He had therefore been placed in a punishment cell; his head had not been shaven. 65.     The applicant affirmed that he was complaining about the conditions of his detention from December 2004 onwards. He submitted that he had raised the matter with the detention judge and the prosecutor present at several detention extension hearings. The applicant’s mother had complained on his behalf to various public authorities such as the Regional Prosecutor’s Office and the Prosecutor General’s Office. However, those complaints had not been examined in substance. There had been no amelioration in the material conditions of detention; renovation works had started only in 2007. A.     Admissibility 1.     Tomsk Prison no.   3 66 .     The Court observes at the outset that the applicant made no complaint about the material conditions of his detention in Tomsk Prison from 11 to 25 April 2005. Even assuming that he complied with the six months rule and the exhaustion requirement, it has not been established that he was subjected to any proscribed treatment there in breach of Article 3 of the Convention. Neither is the mere fact of placement in a punishment cell as a penalty for having violated prison discipline sufficient to constitute degrading or inhuman punishment (see Costello-Roberts v. the United Kingdom , 25 March 1993, §§   30-32, Series   A no.   247 ‑ C). It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     Tomsk Remand Centre no.   70/1 (a)     Exhaustion of domestic remedies 67.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see Guliyev v. Russia , no.   24650/02, §   51, 19 June 2008, with further references). 68.     The Court notes the Government’s argument that the applicant failed to lodge an action before a court complaining about the allegedly appalling conditions of his detention.   The Court has already on a number of occasions examined the same objection by the Russian Government and dismissed it (see Guliyev , cited above, §   34). The Court sees no reason to depart from that finding in the present case. 69.     Thus, the Court concludes that the applicant’s complaint cannot be dismissed for failure to exhaust domestic remedies. (b)     Continuing situation and six-month rule 70.     The Court is satisfied that the applicant’s complaint concerned his detention in the remand centre from December 2004 onwards (see paragraph 36 above). However, it further observes that the applicant’s detention in this remand centre was interrupted from 11 to 25 April 2005, when he was kept in another detention facility. Having regard to the findings in paragraph 66 above and the applicable principles, the Court considers that this period was such as to bar the Court’s competence by virtue of the six-month rule in respect of the complaint regarding the conditions of detention from 10 December 2004 to 11 April 2005 (compare Benediktov , cited above, § 31; Igor Ivanov v. Russia , no.   34000/02, §   30, 7   June 2007; and Guliyev , cited above, §§   31-33; see also, mutatis mutandis , Solmaz v. Turkey , no.   27561/02, §§   32-37, ECHR 2007 ‑ ... (extracts)). 71 .     Furthermore, the Court observes that the applicant lodged before the Court a complaint about the conditions of his detention while still being in the same detention facility. He also remained there after notice of the application had been given to the respondent Government. Thus, it is open to the Court to examine the conditions of the applicant’s detention from 25   April 2005 onwards. 3.     Conclusion on admissibility 72.     The Court finds that the applicant’s complaint regarding the conditions of his detention in the remand centre is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible as regards the conditions of the applicant’s detention in the remand centre from 25   April 2005 onwards. B.     Merits 73.     The Court observes that the parties’ accounts of the conditions of detention differ. Some of the applicant’s allegations are not supported by sufficient evidence and have therefore not been proved beyond reasonable doubt.   However, the Court does not consider it necessary to establish the truthfulness of each and every allegation made by the applicant. Instead, the Cou