CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2011

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB9D5CABB { width:28.35pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .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 } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .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 } .s9059D239 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-after:avoid } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1967A8C2 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sCD75E457 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-after:avoid } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .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 } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; 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 } .s308FBE0C { margin-top:0pt; margin-left:17.3pt; margin-bottom:12pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s299839C6 { width:212.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIRST SECTION           CASE OF CHUDUN v. RUSSIA   (Application no. 20641/04)             JUDGMENT       STRASBOURG   21 June 2011     FINAL   28/11/2011     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Chudun v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Julia Laffranque,   Linos-Alexandre Sicilianos, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 31 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20641/04) 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 Baylak Noozunovich Chudun (“the applicant”), on 7 April 2004. 2.     The applicant was represented by Mr S. Damdyn, a lawyer practising in Kyzyl, Tyva Republic. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their representative Mr G. Matyushkin. 3.     The applicant complained that the conditions of his detention in the remand prison had been appalling, that his detention on remand had been unlawful and excessively long and that the criminal case against him had not been examined within a reasonable time. 4.     On 10   January 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided (pursuant to former Article   29 § 3 of the Convention) to rule on the admissibility and merits of the application at the same time. 5.     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 6.     The applicant was born in 1974 and lives in Kyzyl in the Tyva Republic of the Russian Federation. A.     Applicant’s arrest, ensuing detention and trial 7.     On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of banditism, robbery, theft of firearms and illegal deprivation of liberty. 8.     On 22 January 2000 the applicant was arrested; he was released three days later under a written undertaking not to leave his place of residence. 9.     On 3 March 2000 the preventive measure was changed to detention in custody, and on 4 March 2000 the applicant’s name was put on a wanted list. 10.     On 22 May 2000 the applicant was arrested, and on 25 May 2000 he was detained in remand prison IZ-17/1 of Kyzyl, Tyva Republic. 11.     On 13 July 2000 the acting Prosecutor of the Tyva Republic extended the applicant’s and his co-defendants’ detention until 21   October 2000, relying on the particular gravity of the charges against them and the likelihood that they would obstruct the course of justice and abscond if released. 12.     On 10 and 23 October 2000 the acting Prosecutor of the Tyva Republic and the Deputy Prosecutor General of the Russian Federation respectively extended the applicant’s and his co-defendants’ detention until 22   November 2000 and 21   January 2001 respectively, endorsing the reasons given in the decision of 13   July 2000. 13 .     On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant’s detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure at the material time. 14 .     On 15 February 2001 the Supreme Court of the Tyva Republic suspended the examination of the criminal case because one of the applicant’s co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic in order for a search to be organised. The Supreme Court also noted that the prosecution authorities were to “determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]”. 15 .     The Supreme Court of the Tyva Republic resumed the proceedings on 5   March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned until 20   March 2001 because some of the victims and the lawyers failed to appear. 16 .     On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should “remain unchanged” because of the gravity of the charges against them. 17.     On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants’ liability to abscond, obstruct the course of justice and re-offend, extended the applicant’s and his co-defendants’ detention until 20   August 2001. A further extension until 20   September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with a reference to the same grounds. 18 .     On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2   October 2001 remitted the case again for additional investigation, citing serious violations of defence rights which had not been remedied during the previous referral of the case file to the prosecution authorities. The Supreme Court also ordered that the defendants should remain in custody, given the gravity of the charges against them. 19.     Having received the case file, on 11 October 2001 the deputy prosecutor of the Tyva Republic extended the applicant’s and co-defendants’ detention until 11 November 2001, relying on the grounds used previously, namely the gravity of the charges and the defendants’ liability to abscond, reoffend and obstruct the course of justice. 20 .     On 8 November 2001 the additional investigation ended and the case file was sent to the Supreme Court of the Tyva Republic. It fixed the first hearing for 6 December 2001. However, that hearing and subsequent hearings scheduled for 10   January and 12   March 2002 were adjourned because of the involvement of the presiding judge in other unrelated proceedings. 21 .     In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12   March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants’ lawyers failed to appear, one was rescheduled because the victims did not attend, and one was adjourned because it was necessary to serve the applicant with a copy of the indictment act in the Tyvan language. 22 .     On 13 June 2002 the Supreme Court of the Tyva Republic, finding that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention. 23.     On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic. At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody. 24 .     After receiving the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned until 3   March 2003 because the co-defendants’ counsel failed to appear. On 3 March 2003 the hearing was adjourned on account of the examination of an application requesting release filed by one of the co-defendants. On 18 March 2003 the Supreme Court of the Tyva Republic resumed the examination of the above-mentioned application for release, and on 19   March 2003 it stayed the proceedings until 26 March 2003 because of the necessity to appoint counsel for one of the co-defendants. 25.     On 24 March 2003 the Supreme Court of the Tyva Republic extended the defendants’ detention for an additional three months, until 24   June 2003, holding as follows: “Taking into account the prosecutor’s arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years’ imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who represent an increased danger to society, may considerably impede a thorough, complete and objective examination of the circumstances of the case, the measure of restraint applied to the defendants should remain unchanged.” 26 .     Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants’ lawyers and the victims failed to appear, and one was postponed to provide counsel with additional time to study the material in the case file. 27.     On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording to that in the decision of 24 March 2003, extended the defendants’ detention until 24 September 2003. 28 .     Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one was postponed because a co-defendant was ill, and one was rescheduled on account of a victim’s failure to attend. 29.     On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants’ detention for an additional three months, until 24 December 2003, citing the same grounds as in the previous two detention orders of 24 March and 24 June 2003. 30.     The applicant appealed against the decision of 25 September 2003, arguing that his detention from 24 to 25   September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure, that when extending his detention the court had referred solely to the gravity of the charges, and that his detention in general had been excessively long. 31.     On 4 December 2003 the Supreme Court of Russia upheld the decision of 25 September 2003 on appeal. The court noted that the applicant’s and his co-defendants’ detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants’ detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. With regard to the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had scheduled the hearing for the day after, 25   September 2003. 32 .     In the meantime, the Supreme Court of the Tyva Republic had listed nine hearings between 25 September and 9 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants’ counsel were either involved in other proceedings or failed to appear, one was postponed because the presiding judge was ill, one was postponed at the request of one of the counsel and two were cancelled because it was necessary to determine the issue of the defendants’ representation. 33.     On 18 December 2003 the Supreme Court of the Tyva Republic, relying on the same grounds as in the detention orders issued in 2003, issued another collective decision in respect of the defendants, extending their detention until 24 March 2004. Subsequent identically worded detention orders were issued by the Supreme Court of the Tyva Republic on 19   March and 18   June 2004, extending the defendants’ detention until 24   June and 24   September 2004 respectively. Appeals lodged by the applicant against the extension orders of 19   March and 18 June 2004 were to no avail. 34 .     Between 14   January and 15 June 2004 nineteen hearings were adjourned, mostly on account of the failure of the participants in the trial (witnesses, victims, counsel) to appear before the court for various reasons. 35.     On 25 August 2004 the Supreme Court of the Tyva Republic convicted the applicant, along with ten other co-defendants, of robbery and theft of firearms and sentenced him to eight years and five months’ imprisonment. The applicant decided not to lodge an appeal. B.     Conditions of the applicant’s detention in facility IZ-17/1 36.     From 8   June 2000 to 28   September 2004 the applicant was detained in detention facility IZ-17/1 of Kyzyl in the Tyva Republic. During this period the applicant was held in cells nos. 18, 19, 21, 22, 26, 29, 36, 43, 51, 53, 56 and 80. 1.     The applicant’s account 37 .     For an extended period of time the applicant was held in cell no.   51 measuring 7.5 square metres and containing up to twelve inmates simultaneously. 38.     The applicant alleged that he had contracted tuberculosis as a result of his detention in such cramped conditions. 2.     The Government’s account 39 .     As regards the cells’ measurements and the number of inmates detained therein together with the applicant, the Government submitted as follows: (a)     cell no. 18 measuring 29 square metres accommodated from four to seven detainees between 7 December 2000 and 28 June 2001; (b)     cell no. 19 measuring 29.4 square metres accommodated from six to seven detainees between 17 October and 7 December 2000; (c)     cell no. 21 measuring 35 square metres accommodated from seven to nine detainees between 10 October and 19 November 2001; (d)     cell no. 22 measuring 31 square metres accommodated from six to eight detainees between 9 June and 17 October 2000 and between 25   October 2003 and 29 March 2004; (e)     cell no. 26 measuring 28.9 square metres accommodated from five to six detainees between 2 April and 8 August 2002; (f)     cell no. 29 measuring 29.4 square metres accommodated from three to seven detainees between 8 August and 31 October 2002; (g)     cell no. 36 measuring 44.4 square metres accommodated from eight to eleven detainees between 29 March and 28 September 2004; (h)     cell no. 43 measuring 40.4 square metres accommodated from six to ten detainees between 2 September and 10 October 2001; (i)     cell no. 51 measuring 13.7 square metres accommodated from three to four detainees between 28 June and 2 September 2001; (j)     cell no. 53 measuring 21.2 square metres accommodated from four to six detainees between 19 November 2001 and 2 April 2002; (k)     cell no. 56 measuring 45.4 square metres accommodated from eight to eleven detainees between 20 July and 25 October 2003; (l)     cell no. 80 measuring 23.9 square metres accommodated from three to seven detainees between 31 October 2002 and 20 July 2003. 40 .     In each cell the applicant had an individual sleeping place and bedding. 41.     The applicant was able to take daily one-hour outside walks, which took place in the specially equipped exercise yards. 42.     The lavatories in the cells, equipped with a flush system, were separated from the living area by one-meter-high brick partitions enabling the inmates to comply with their needs in private. They were situated at a distance from the dining table. 43.     The applicant could take a fifteen-minute shower once a week. After each shower, he received fresh bedding. 44.     The cells were equipped with drinking-water tanks. The detainees were also allowed to use electric kettles. 45.     The applicant was given food three times a day in accordance with the established legal norms. 46.     The cells were equipped with dining tables and benches corresponding to the number of detainees, forty centimetres of table and bench being allowed for each detainee. 47.     All cells were ventilated by a system of exhaust ventilation. Natural ventilation was also available. The cells were also equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature in the cells was maintained at 18-24 degrees Celsius. 48.     Until 2003 the windows in the cells were covered with metal screens. These were subsequently removed to provide better access to daylight and fresh air. The artificial lighting consisted of one 100-150 watt light bulb per cell. Bigger cells were lit by two 100 watt light bulbs. 49.     The authorities ensured regular disinfection and pest control in the facility. 50.     Upon admission to the facility the applicant underwent an initial medical examination, including a fluorography examination (no pathologies were discovered) and blood tests to detect syphilis and HIV (both were negative). The applicant had no specific health-related complaints upon his admission. In December 2001 the applicant suffered an episode of catarrhal tonsillitis and received appropriate treatment; in March 2002 he was diagnosed with acute pyelonephritis and received appropriate treatment (subsequently the diagnosis was not confirmed); in September 2003 he was diagnosed with osteochondrosis, for which he receives regular treatment. The applicant’s allegations that he had contracted tuberculosis while in detention facility were disproved by the results of his fluorography examination of 26   February 2008. 51 .     In support of their observations the Government provided several certificates issued by the governor of IZ-17/1 on 29   February 2008, together with the applicant’s prison card which recapitulates the numbers of the cells where the applicant was detained throughout his stay in the facility and the dates on which he was transferred from one cell to another, a list of food items supplied to detainees in the relevant period, and records from the applicant’s medical file. Although the certificates attesting to the number of inmates contained in the cells with the applicant mention enclosures containing statements by prison officers and by the applicant’s inmates Ch., V. and B. (who were held together with the applicant in cell no.   51 of the facility), these enclosures were not made available to the Court. II.     RELEVANT DOMESTIC LAW 52.     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 53.     “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 54.     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). 55.     Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). 56.     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 57.     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). 58 .     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 only if the charge carried a sentence of at least two years’ imprisonment, if they had previously failed to appear 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 59.     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” 60 .     After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it 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). 61.     The period of detention “pending the investigation” is calculated to the day when the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 62 .     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, at the request of 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. 63 .     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” 64.     From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). 65 .     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 at the request of 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. 66 .     The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court receives 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.     Time-limits for trial 67 .     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. 68.     The duration of the trial is not limited. 69 .     Under the old CCrP, the appeal court was required to examine an appeal against a first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or 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). F.     Conditions of detention 70.     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. 71 .     Order no. 7 issued on 31 January 2005 by the Federal Service for the Execution of Sentences deals with the implementation of the “Remand Prison 2006” programme. The programme is aimed at improving the functioning of remand prisons so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in remand prisons and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions detention facility IZ-17/1 of Kyzyl, Tyva Republic, as one of the remand prisons affected. On 1   July 2004 its design capacity was 402   detainees, but it actually housed 605 inmates. III.     RELEVANT COUNCIL OF EUROPE DOCUMENTS Conditions of detention 72.     The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: Extracts from the 2nd General Report [CPT/Inf (92) 3] “46.     Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47.     A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48.     Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49.     Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50.     The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51.     It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” Extracts from the 7th General Report [CPT/Inf (97) 10] “13.     As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph   46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” Extracts from the 11th General Report [CPT/Inf (2001) 16] “28.     The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29.     In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large­capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30.     The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 73.     The applicant complained that his detention in remand prison IZ ‑ 17/1 of Kyzyl, Tyva Republic, in conditions of extreme overcrowding, had been 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.” A.     Admissibility 74.     The Government raised the objection of non-exhaustion of domestic remedies by the applicant. They submitted, in particular, that the applicant could have lodged a civil claim for damage sustained as a result of the allegedly inhuman and degrading conditions of his detention. The Government relied on the case of a Mr D. who had successfully brought a civil claim for damages resulting from the conditions of his detention in a correctional colony. 75.     The Court has already examined the same objection by the Russian Government on a number of occasions and dismissed it, finding that an application to a court with a view to obtaining redress for allegedly inhuman and degrading conditions of detention cannot be regarded as an effective domestic remedy (see, most recently, Gladkiy v. Russia , no.   3242/03, §   55, 21   December 2010, and Artyomov v. Russia , no.   14146/02, §   112, 27   May 2010). In the absence of any additional evidence enabling the Court to depart from such a finding in the present case, the Court dismisses the Government’s objection. 76.     The Government further objected to the examination of the conditions of the applicant’s detention as a continuous situation. They argued that, since the application was lodged on 7   April 2004, the Court should only have regard to the period starting from 7 October 2004, claiming that the preceding period fell outside the six-month time limit set out in Article   35   §   1 of the Convention. 77.     The Court has previously established that continuous detention in the same detention facility under similar conditions warrants examination of the detention as a whole, without dividing it into separate periods (see Gubkin   v.   Russia , no.   36941/02, §   86, 23   April 2009). In the present case the applicant was held in the same detention facility uninterruptedly, and it appears that the conditions of his detention did not vary substantially from cell to cell. The Court considers, therefore, that the applicant’s detention from 8   June 2000 to 28   September 2004 should be examined as a whole and that the Government’s objection should be dismissed. 78.     The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Submissions by the parties 79 .     Relying on their description of the prison, the Government asserted that the conditions in it were satisfactory. The conditions complied with the hygienic standards of domestic penal law and fell far short of “inhuman treatment” as developed in the Convention case-law. The Government noted that some cells where the applicant had been detained were indeed somewhat overcrowded, but this overcrowding was not excessive, and in any event, in each cell the applicant had been provided with an individual sleeping place. They further submitted that adequate medical assistance had been available to the applicant at all times. 80.     The applicant maintained his complaint. 2.     The Court’s assessment 81.     As the Court has held on many occasions, Article   3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). However, to fall under Article   3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Valašinas v.   Lithuania , no. 44558/98, §§ 100-01, ECHR 2001-VIII). When a person is held in detention the State must ensure that he is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas , cited above, § 102, and Kudła v. Poland [GC], no.   30210/96, §   94, ECHR   2000 ‑ XI). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant’s specific allegations (see Dougoz v. Greece , no. 40907/98, §   46, ECHR 2001 ‑ II). The duration of the detention is also a relevant factor. 82.     Turning to the facts of the present case, the Court notes that the applicant’s main concern was the extreme overcrowding of the cell no.   51 where he had been held during an unspecified but prolonged period of time. The Court further notes that while the applicant claimed to have been afforded less than one square metre of personal space in the above cell (see paragraph   37 above), the Government averred that the cell in question had afforded the applicant personal space exceeding three square metres and that the applicant had always had an individual sleeping place and bedding (see paragraphs 39 and 40 above). 83.     The Court reiterates that Convention proceedings such as those arising from the present application do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-founded nature of the applicant’s allegations (see Fedotov v. Russia , no.   5140/02, §§   60 and 61, 25   October 2005, and Kokoshkina v. Russia , no.   2052/08, §   60, 28   May 2009 in the context of complaints about material conditions in detention facilities). 84.     The Court notes that the Government, in their plea concerning the number of detainees, relied on the certificates issued by the governor of facility IZ-17/1. The Court observes that the certificates in question, issued in February 2008, long after the applicant’s release from the above ‑ mentioned detention facility, were not supported by any documents enabling the Court to verify their validity. The Court observes in this regard that it was open to the Government to submit copies of registration logs recording the cell population ( журналы покамерного размещения ) and showing the names of inmates detained together with the applicant in the relevant period. The Court furthe