CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 octobre 2011

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display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }       FIRST SECTION             CASE OF ROMANOVA v. RUSSIA   (Application no. 23215/02)             JUDGMENT       STRASBOURG   11 October 2011   FINAL   08/03/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Romanova v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Khanlar Hajiyev,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 20 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23215/02) 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, Ms Larisa Valeryevna Romanova (“the applicant”), on 24 April 2001. 2.     The applicant, who had been granted legal aid, was represented by Ms   V.   Kartseva and then by Mr D.   Sirozhidinov, lawyers practising in Moscow and the Moscow Region respectively. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and then by Mr   G.   Matyushkin, former and current Representatives of the Russian Federation at the European Court of Human Rights respectively. 3.     On 23 May 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 § 1). 4 .     In June 2010 the President of the Chamber to which the case had been assigned invited the respondent Government under Rule 54 § 2 (a) of the Rules of Court to submit further documents concerning the application. The President of the Chamber also acceded to the Government’s request and ruled that, pursuant to Rule   33   §   1, the above-mentioned documents should not be made available to the public. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1974 and lives in Moscow. A.     Explosions 6.     On 1 November 1998 an explosion destroyed the monument to Tsar Nicolas II in Podolsk in the Moscow Region. 7.     On 13 August 1998 and 4 April 1999 two explosions occurred in Moscow during the night, damaging the façade of the Federal Security Service (“the FSB”). 8.     Criminal investigations into acts of terrorism were opened following these events. Responsibility for the explosions was attributed to the anarchist movement “New Revolutionary Alternative” (NRA). B.     Subsequent events and investigative measures 9.     With regard to the explosion on 13 August 1998, the Moscow Regional Office of the Federal Security Service sought in September 1998 to establish whether the area adjacent to the FSB Office was monitored by any privately-owned or public video surveillance and recording systems. It was established that the video equipment of a private bank situated in the vicinity had been out of order from 11 to 13 August 1998; guards in others buildings which had video surveillance systems had not heard of any incident on 13 August 1998. It was reported that another bank and a shopping centre also had video surveillance and recording systems and that the authorities “had taken measures to ensure the safeguarding and seizure of the recordings”. 10.     It was decided in December 1998 to suspend the investigation because no suspects had been identified in relation to the explosion on 13   August 1998. 11.     On unspecified dates, following the resumption of the investigation, four suspects, including the applicant, were identified. The proceedings against one of them, Mr B., were later severed. The court discharged him from criminal liability and ordered mandatory psychiatric treatment for schizophrenia. 12.     In the meantime, the applicant was made the subject of another criminal investigation in the Krasnodar Region on charges of handling explosives. It is unclear whether or not she was detained there for an unspecified period of time between January and June 1999. 13.     On 2 February 1999 the applicant’s flat was searched and a number of items which could be used for manufacturing an explosive device were found, together with allegedly anarchist literature. Between May 1999 and January 2000 the applicant was questioned in Moscow as a witness in relation to the explosions in Moscow and Podolsk. 14.     According to the applicant, her telephone conversations had also been recorded in January and February 1999, that is, after the events on 13   August and 1 November 1998 but before the explosion in front of the FSB Moscow office on 4 April 1999. Allegedly, she learnt about the secret surveillance measures in January 2002 when she was studying the case file before her trial (see paragraph 36 below). 15.     As can be seen from a report dated 8 June 1999 issued in connection with the criminal investigations of the Moscow and Podolsk explosions, an officer of the FSB Regional Office stated that a number of measures under the Operational and Search Activities Act (see paragraph 79 below) revealed that the applicant was skilled in the manufacturing of explosives and was a member of “New Revolutionary Alternative”; the above-mentioned measures had also permitted the authorities to identify her co-members and had made it probable that explosives or their components would be found at the applicant’s place of residence. In view of the above, the reporting officer sought permission to carry out a search. It is unclear whether and when this search was carried out (see, however, paragraph 19 below). 16 .     By a decision of 9 June 1999, the Moscow City Court authorised the investigating authority to monitor conversations on seventeen fixed lines for a period of one hundred and eighty days; these were apparently unrelated to the applicant’s place of residence. In the same court decision, however, the City Court also authorised the opening and inspection of postal and other correspondence related to the corresponding postal addresses, as well as surveillance using video and audio recording at the applicant’s flat for the same period of time. In October 1999 the City Court issued another order authorising the tapping of another telephone line. 17 .     In August 1999 an officer of the FSB Regional Office reported to his superior that it was necessary to carry out “an analysis of calls since 1   January 1998” made to and from a number of fixed telephone lines, including the lines used by the applicant and her mother. 18 .     From October 1999 to April 2000 the applicant was subject to surveillance with the use of radio-transmitting devices which monitored and recorded her conversations in the flat. 19 .     In the meantime, at around 8.30 p.m. on 16 November 1999, a search was carried out in the flat of the applicant’s mother. The applicant was temporarily residing in the flat. The investigators found and seized a number of chemical agents and objects allegedly used for manufacturing explosives and samples of materials subsequently identified as those used in the 1998 explosions. 20.     On 28 April 2000 the Chertanovskiy District Court of Moscow disallowed a complaint brought by the applicant’s mother regarding the searches which had been carried out in her flat. C.     Matters relating to the applicant’s arrest and detention 21 .     In the meantime, on 5 April 2000, the applicant, together with Mr B. and Ms Nev., was arrested on suspicion of her involvement in the explosion of 13   August 1998.   The deputy director of the FSB Investigations Department ordered her placement in custody, with reference to the risk of her evading investigation, obstructing the proceedings and reoffending, and with particular regard to the gravity of the offences and the applicant’s personality. 22.     On 11   April 2000 the Moscow public prosecutor’s office extended the applicant’s detention. On 17 April 2000 the Lyublinskiy District Court of Moscow rejected her application for release. The applicant’s detention was further extended by the Prosecutor General’s Office on 30   May, 30   June and 2   October 2000, 7   February, 11 May and 8 August 2001. 23.     Apparently on 27 June 2001, the applicant lodged an application for release and waived her right to appear before the court, referring in particular to the exhausting conditions of transport between the remand centre and the courthouse. On 20   July 2001 the Lyublinskiy District Court rejected the application for release. Allegedly, on that day the applicant was brought to the courthouse for unspecified reasons but did not attend the hearing. The District Court held as follows: “Despite [the applicant’s] arguments concerning her state of health and the fact that she has underage children, one of whom is under her care in the detention facility, the court considers that the continued detention of [the applicant] is lawful and justified on account of the gravity of the charges and her personality.” 24 .     The applicant appealed. In the meantime, on 3 October 2001, the Moscow City Court extended the applicant’s detention until 5 April 2002, giving the following reasons: “...taking into account the accused’s character ([she was] previously convicted under ...the CCrP) [and] the gravity of the charges, [there are] sufficient grounds to believe that, if released, the accused would abscond ... and thereby interfere with the establishment of the truth in the present criminal case and continue her criminal activity...”. 25.     On 22 November 2001 the Supreme Court of Russia upheld the extension order. Several public figures, including a member of Parliament, signed personal guarantees in support of the applicant’s bail applications. 26.     On 29 November 2001 the City Court upheld the decision of 20   July 2001 as follows: “The court authorised [the applicant’s] placement in custody on account of the public dangerousness of the offences, the gravity of the charges and the particular circumstances of the case, including her personality, state of health and her underage children. No new circumstances affecting the preventive measure were identified. The detention issue was examined in the absence of [the applicant], owing to her waiver.” 27 .     On 6 March 2002 the City Court decided to “maintain the preventive measure”. It appears that no hearing had been held. On 25 April 2002 the Supreme Court heard the applicant’s lawyer and a prosecutor, and upheld that decision in the following terms: “...the judge rightly pointed to the absence of any grounds for release as the preventive measure had been ordered in compliance with the law, regard being had to the actual circumstances of the offences in question and the character [of the applicant].” 28.     From 1 July 2002 onwards the applicant’s detention was regulated by the new Code of Criminal Procedure, and in particular Article 255 thereof (see paragraph 71 below). 29 .     On 21 August 2002 the applicant’s lawyer Ms Ka. made written submissions in relation to the pending extension request from the prosecution. A detention hearing was held on the same day by judge M. assisted by two lay assessors. At the hearing the applicant’s lay representative Mr R. challenged the court, submitting that there had been no decision reassigning the criminal case to judge M. The challenge was dismissed as not “prescribed by law”. The court, composed of judge M. and two lay assessors, extended the applicant’s detention until 22   November 2002. The court held as follows: “The following persons are absent: lawyers Ms Ka. and Mr Ka. (on annual leave), Ms E. (busy in another case), Kr. and prosecutor Ma. (reason unspecified). Thus, the examination of the case cannot proceed. Besides, the six-month period of detention of [the applicant] expires on 22   August 2002. Under Article 255 § 3 of the Code of Criminal Procedure a court may extend detention... The court has heard submissions from the defendants and lawyer Kr., who is against the extension; representative R. and lawyer Ch. are against the examination of the detention issue in the absence of the persons referred to above. The court considers that [the applicant’s] detention should be extended in view of the gravity of the charges.” 30 .     The applicant appealed, arguing that judge Ko. had been the trial judge in the case. By virtue of the rule of immutability of the court’s composition, judge M. had no legal basis for issuing any decisions concerning the applicant in the absence of a formal decision to replace the trial judge. In any event, this “court” could not have lawfully taken any detention-related decision in the absence of the prosecutor and counsel. The detention order was unlawful as no reasons had been given. 31 .     Having heard submissions from the applicant’s lawyer, and referring to Articles 377, 378 and 388 of the Code of Criminal Procedure (see paragraphs 76 and 77 below), the Supreme Court set aside that decision on 16 October 2002, finding as follows: “...the court ...was not in a position to give its rulings, which were prejudicial to the rights and freedoms [of the applicant], in the absence of defence counsel and especially of the prosecutor, who must carry out the function of prosecution on behalf of the State... Ruling on the detention issue, the court premised its findings on the parties’ submissions, without any analysis of the materials in the case file relevant to the detention issue... Moreover, when extending the term of the detention ... the court referred only to the gravity of the charges ... in breach of Article 7 § 4 of the Code of Criminal Procedure, which provides that the detention order must be lawful and reasoned... ...the expiry of the six-month period and the gravity of the charges are not absolute grounds for extending detention... The court is empowered, but not obliged, to order an extension... The new examination will have to address the above breaches and consider the arguments submitted by the accused and their counsel... This court has no power to annul or amend the preventive measure in respect of [the applicant] because the criminal case [against her] is pending before the Moscow City Court.” Lastly, the Supreme Court held that the applicant “should be taken into custody”. 32 .     Having heard submissions from the applicant’s lawyers, on 21   November 2002 judge Ko., sitting with the lay assessors, issued a new extension order in respect of the period from 22 August until 22 November 2002. The order referred solely to the gravity of the charges against the applicant. By a separate order of the same date, the City Court granted a further extension of the applicant’s detention until 22 February 2003. On 12   February 2003 the Supreme Court upheld that (second) decision in the following terms: “the [city] court analysed thoroughly the materials in the case file ... [including] those relating to the adjournment of hearings on several occasions on the ground that the trial participants, including counsel for Ms Romanova, had failed to appear...” 33.     On 14 February 2003 the City Court rejected an application for release from the applicant. The court held: “...given the gravity of the charges and other circumstances, as well as the [applicant’s] conduct at this stage of the proceedings – she is seeking to delay them – there are no valid reasons for varying the preventive measure. The issue of the preventive measure will be finally determined by the court taking the final decision on [the applicant’s and co-defendants’] guilt or innocence in respect of the offences in question. The arguments concerning the alleged difference in treatment of defendants Nev. and Nekh., who are under an undertaking not to leave their town of residence, and [the applicant] and Ra. are without legal basis.” 34.     By a separate decision on the same day the City Court extended the applicant’s detention until 22 May 2003, referring to the gravity of the charges against her. On 23 April 2003 the Supreme Court upheld the extension, finding, with reference to Article 255 § 3 of the Code of Criminal Procedure, that the gravity of the charges justified a further extension of the applicant’s detention. 35.     The applicant and her co-defendant Ra. were thus kept in custody before and during the trial. Their co-defendants Nev. and Nekh. were under an undertaking not to leave their town of residence. D.     Criminal proceedings against the applicant 1.     Pre-trial proceedings 36 .     On 11 April 2000 the applicant was charged with terrorism, handling explosives and drug-related offences. The preliminary investigation was completed on 22 May 2001. The applicant studied the case file together with counsel and her lay representative, Mr R. As can be seen from the record, between 22 May and 3 August 2001 the applicant studied several volumes for periods of between thirty minutes and seven hours per day. Between 22 August and 21 September 2001 the applicant refused to study the file because her counsel was not present. After resuming her study for a further period, she again did not study the material owing to the unavailability of her lawyers.   In December 2001 the investigating authority ordered the defence to complete its study of the case file before 5   February   2002. 2.     Trial 37 .     On 22 February 2002 the criminal case was submitted to the City Court for trial. The case was assigned to judge Ko. On 6 March 2002 judge Ko. refused to relinquish jurisdiction in favour of the Moscow Regional Court for trial by jury. The judge ruled that “the nature of the charges and the need to ensure the safety of the trial participants” required that the trial be conducted in camera. On 14 March 2002 the applicant was provided with a copy of the bill of indictment. 38.     On 25   April 2002 the Supreme Court upheld the decision of 6   March 2002 in the part concerning the trial in camera. It also rejected a challenge from the applicant concerning two of the three appeal judges, Bo. and Va., who had previously ruled on her appeals against her detention. 39 .     On 26 April 2002 two lay assessors were appointed to sit with the presiding judge.   The applicant complained that she had not received a copy of the annexes to the bill of indictment, including the list of persons to be called as witnesses and the list of physical evidence to be examined at the trial (see also paragraphs 41 and 44 below). On 21 May 2002 the applicant was provided with a copy of the list of witnesses. On 21 August 2002 judge M., apparently replacing the trial judge Ko., decided to stay the proceedings owing to the absence of the prosecutor and of counsel for the applicant and her co-defendants. 40 .     It appears that since April 2002 at least twenty adjournments were ordered, mostly due to one or several lawyers’ absence for medical reasons, due to annual leave or unspecified reasons. In January 2003 judge Ko. sent a letter to the Moscow Bar Association complaining that the lawyers representing the applicant (Mr Ka. and Ms Ka.) and those representing her co-defendants had obstructed the trial by failing to appear on a number of occasions. The judge indicated that Mr Ka. had not been present on 21   May   and 25 June 2002 owing to his involvement in another trial; had been on sick leave from 23 November to 11 December 2002; had been absent on 18   July and 16 December 2002 and on 9 January 2003 without a valid excuse supported by proof; and between 19   and 27 December 2002 had apparently been admitted to hospital, allegedly until 23   January 2003. Ms Ka. had not been present on 26 April 2002 owing to alleged illness and had been absent on 18 July and 27   December 2002 and on 23   January 2003 without a valid excuse supported by proof. 41 .     According to the trial verbatim record, the trial judge, noting the applicant’s refusal to study the case file in July 2002, asked the applicant which documents in the case file she wanted to examine. The applicant did not make any specific request. Instead, she and her lawyer Ka. complained that they had not been given an adequate opportunity to study the file during the preliminary investigation or to consult it at the premises of the remand centre rather than in the court building. The judge granted the defence request to study the case file, but the applicant refused to make use of it. 42.     It appears that the applicant’s co-accused retained new counsel, who were given time to study the case file. 43 .     On 3 February 2003 the trial court removed the applicant’s lay representative from the trial for repeated disruption of order in the courtroom. On the same date, the Preobrazhenskiy District Court of Moscow held the lay representative in contempt and ordered him to pay a fine of 1,000 Russian roubles. On 14 February 2003 the City Court rejected the applicant’s requests to have Mr R. re-admitted and also a motion she had submitted seeking to have the trial conducted in public. The court held that the case was “secret” for the purposes of Article 241 § 2 of the Code of Criminal Procedure and the anti-terrorist legislation. 44 .     On 14 March 2003 the trial court examined a number of requests submitted by the defence. The court considered that the RSFSR Code of Criminal Procedure, which had been applicable before the trial, did not require that the defence should be provided with both the bill of indictment and any “annexes” to it. In any event, the defence had been provided with the annexes, including the list of persons to be called as witnesses at the trial. The applicant, her lawyers and the lay representative R. had been afforded an opportunity to study the case file on several occasions. They had not made full use of that opportunity, on spurious grounds. 45.     It appears that from 25 April to 1 May 2003 the applicant was kept in a disciplinary cell. 46.     On 14 May 2003 the City Court convicted the applicant and Ms Nev. in relation to the explosion of 13 August 1998 (unlawful production, possession and carrying of explosives, and terrorism) and the explosion of 1   November 1998 (unlawful possession, carrying and procurement of explosives and aiding and abetting an act of terrorism). The applicant was sentenced to a term of imprisonment of six years and six months. 47.     The defendants had pleaded not guilty.   However, referring to written depositions by Ms V. and Mr St. made at the pre-trial investigation stage, the City Court established that the bomb had targeted a public building, namely the FSB offices. The court also relied on written depositions by Mr   N. and oral testimony from the witnesses R., K. and S., who had received information about the applicant’s anarchist activities and details of the explosions either directly from her or from her accomplices, including Mr B. 48.     On the basis of the forensic reports the City Court established that the materials seized during the searches at the applicant’s home were identical to those used in the Moscow explosion. The City Court also had regard to transcripts of the tapped telephone conversations of 4 October and 18   November 1999, in which the applicant had discussed the explosions with her accomplices. 49 .     The trial judgment reveals that the national authorities seized from a third person a handwritten note containing B.’s name and telephone number. It was established that this telephone number corresponded to the applicant’s and B.’s shared place of residence in Moscow and that B. had used the line for his telephone calls, as confirmed by the information set out at pages 110-115 of volume 16 of the criminal case file. 50.     The applicant and her lawyers appealed against her conviction to the Supreme Court, relying on arguments which were substantially the same as those raised before this Court. 51.     On 4 December 2003 the Supreme Court, sitting in camera, quashed for lack of evidence the applicant’s conviction in the part concerning the Podolsk explosion on 1 November 1998 but upheld the remainder of the judgment and reduced the applicant’s sentence to five   years and six months’ imprisonment. 3.     Post-trial proceedings 52.     On 6 August 2004 the Vladimir Regional Court refused to suspend execution of the applicant’s sentence. On 27 October 2004 the Supreme Court upheld this judgment. 53.     Subsequently, the applicant attempted to have the 2001 Amnesty Act applied to her, but was told she did not qualify for it. She also unsuccessfully sought supervisory review of her conviction. 54.     On 24 January 2005 the Sudogodskiy District Court of the Vladimir Region refused to release the applicant on parole. 55.     Between 2003 and 2005 the applicant, her counsel and her parents lodged numerous applications with the Constitutional Court seeking a declaration of incompatibility of specific laws with the Constitution or a finding that other authorities had incorrectly applied the law. The Constitutional Court refused to entertain these complaints, inter alia , for lack of jurisdiction. 56.     On 4 October 2005 the applicant was released after having served her sentence. E.     Conditions of detention, transport and confinement in the courthouse 1.     The applicant’s account 57.     From 5 April 2000 until December 2003 the applicant was detained in Moscow remand centre no.   77/6. Thereafter, she was also held in a prison in Vladimir. (a)     Conditions of detention in the remand centre 58.     Under domestic legislation that allowed children under three to remain with their mother, the applicant opted to have her daughter (born in September 1999) placed in the remand centre with her. They were placed in the wing for women with children. It appears that in June 2000 the applicant and her daughter were temporarily placed in the medical unit as their cell was being renovated. On an unspecified date the child was admitted to hospital for treatment. In late August 2002 the applicant’s mother took the child out of the detention facility and took care of her thereafter. The applicant’s elder daughter, born in 1997, remained at home with her grandmother. 59.     According to a letter sent to judge Ko. by the Moscow Department for the Execution of Sentences in April 2002, the applicant was kept in cell no.   205, designed for twelve women with children; the cell had twelve cots, three refrigerators, two electric stoves and a playpen. The cell comprised a bedroom, a bathroom and a toilet. At the time, the cell accommodated seven women with children. 60.     During her detention the applicant, her counsel and her parents submitted a number of complaints to the management of the remand centre and other public authorities. The applicant complained about the conditions of her detention, claiming in particular that the cells were poorly ventilated and were not equipped with heating or cooking facilities, that the food was of poor quality, that there was an insufficient supply of personal hygiene products and that a shower was permitted only once a week. The applicant also complained of having been beaten up by a warden and of disputes with her cellmates allegedly instigated by investigators in order to put pressure on her. She also complained that she and her daughter had not been allowed to participate in outdoor activities. The applicant was authorised to have regular walks within a specially-designated closed area. In 2003 the applicant’s stepfather complained about the court’s failure to examine his applications for permission to visit the applicant in the remand centre. 61.     It appears that on 25 April 2003 for unspecified reasons the applicant was put in a disciplinary cell for five   days. On 25 and 29 April 2003 the applicant’s stepfather and counsel filed complaints with the Moscow City Court, claiming that placing a mother of two suffering from kidney disease in a disciplinary cell was inhuman. (b)     Conditions of transport and confinement at the courthouse 62 .     During the trial, in particular between October 2002 and May 2003, the applicant, occasionally together with her child, was transported from the remand centre to the Moscow City Court between one and four times a week. She was woken up between 4.30 and 6 a.m. and brought to a cell measuring ten to twelve square metres, in which she awaited her departure together with twenty to thirty other detainees. Before leaving they had to undergo a strip search. At around 10   a.m. the detainees were transported by a “prison bus” with individual compartments or by a prison van divided into two compartments – male and female – accommodating twelve prisoners each. However, on occasions the female compartment contained up to fifteen   women, and the applicant at least once had to sit on another person’s lap. The heating, ventilation and light were deficient and not adapted to seasonal conditions. No toilet facilities were available during the journey. 63 .     Owing to a shortage of prison vans and the long distances between detention facilities, the return to the detention facility could take up to several hours. Unlike for the journeys to the courthouse, on the way back the prison van had never gone directly to remand centre no.   77/6, it made a detour to bring detainees to other remand centres where it sometimes stayed for hours. On arrival at around 1 or 2 a.m., the admission check would take another hour or two. 64 .     In the City Court the applicant was put in the convoy cell, a poorly lit and ventilated room measuring seven square metres, with a row of benches. Detainees had to clean the cells. The only lavatory, for both male and female detainees, was extremely dirty.   The applicant subsequently submitted that the cells at the courthouse had, most of the time, been reserved for male detainees; female detainees had been placed in a small cell; there was no toilet reserved for women; the toilet could not always be accessed when needed. 65 .     In the City Court no hot meals or boiled water were distributed. Detainees leaving for a court were provided with a “day pack” containing a piece of bread, a tea bag and cold soup. The applicant subsequently submitted that in 2002 detainees had been given a ration of bread, a soya-based cold food and, at times, sugar. The applicant’s relatives supplied food on several occasions. The applicant was allowed to bring a bottle of water. In mid-2003 the authorities had started to provide dry rations which could not be properly consumed without hot water. It does not appear that these new arrangements affected the applicant. 66 .     According to the applicant, she remained handcuffed throughout the time she spent studying the case file on the court premises. In the courtroom, the applicant was kept in a metal cage guarded by convoy officers. 2.     The Government’s account concerning the conditions of transport and confinement at the courthouse 67 .     The applicant was transported between the remand centre and the courthouse in ZIL and GAZ vehicles designed for thirty-six and twenty-one persons respectively. The ventilation consisted of an opening in the back door and an opening in the ceiling. The vehicles were heated through the internal system connected to the vehicle’s engine. 68 .     At the Moscow City Court, before renovation works in 2004, the applicant was kept in a cell measuring 1.95 square metres. Each cell had a system of ventilation, lights and a bench. Each cell was cleaned on a daily basis. The applicant could be taken to the toilet on request, as well as before departure to the remand centre and before and after a court hearing. Detainees were “kept separately” in the cells. Before departure detainees were provided with a hot meal in the remand centre and could take their own food with them. Hot water was provided in the court building. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Detention and judicial review 69 .     The Constitution guarantees the right to liberty. Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours (Article 22). 70 .     Under Article 239.1 of the RSFSR Code of Criminal Procedure (CCrP), detention pending trial could not exceed six months from the date when the case was submitted to the court. If the available data confirmed that the defendant’s release would significantly obstruct the course of the proceedings, the court could issue a reasoned decision extending his or her detention until the delivery of the judgment and, in any event, for up to three months. If the decision was quashed on appeal, the defendant had to be released without delay. The above provisions did not apply to defendants charged with particularly serious offences. 71 .     From 1 July 2002 onwards detention pending trial was regulated by Article 255 of the new Code of Criminal Procedure.   At the material time it authorised detention for six months from the receipt of the case by the court until the delivery of the judgment. On expiry of the six-month period “the court dealing with the case” was empowered to order extensions of the defendant’s detention by up to three months each time. In its ruling of 22   March 2005 the Constitutional Court of Russia held that the CCrP allowed a court to decide on detention proprio motu . This finding, however, did not absolve the court from its obligation to examine all relevant evidence adduced by the parties; defendants had to be allowed to take part in the proceedings concerning their detention and be given an opportunity to present their case and adduce evidence. 72.     Article 379 of the new CCrP sets forth the legal grounds for quashing or amending a judgment on appeal: (i) contradiction between the court findings in the judgment and the factual circumstances of the case; (ii) violation of a rule of criminal procedure; (iii) incorrect application of the criminal law; and (iv) unfairness of the judgment. 73.     Ground (i) obtains where the court’s findings are not supported by the evidence examined at the trial; the court does not take account of circumstances capable of influencing its conclusions; despite the existence of contradictory evidence crucial to the court’s conclusions, the latter omits to indicate why it accepted or excluded such evidence; the court’s findings in the judgment contain significant contradictions which influence or could influence the findings on guilt or innocence, the correct application of the criminal law or the determination of sentence (Article 380). 74.     Ground (ii) obtains where a party to the proceedings is deprived of or restricted in the exercise of his or her procedural rights; a procedure is not complied with or there has been another defect which influences or could influence the fairness of the proceedings. The following circumstances should, in any event, constitute grounds for the quashing or amendment of the judgment: failure to discontinue a criminal case despite the existence of the circumstances set out in Article 254 of the Code; unlawful composition of the trial court or jury; examination of the case in the absence of the defendant, except in the circumstances set forth in Article 247 of the Code; examination of the case without legal counsel, when his or her presence is mandatory under the Code, or other violations of the right to legal assistance; violation of the defendant’s right to use his or her own language or to have the assistance of an interpreter; failure to give the defendant an opportunity to take part in oral pleadings or make final pleadings; violation of the secrecy of the deliberations, etc. (Article 381). 75.     Ground (iii) obtains when there has been a violation of the Criminal Code or incorrect reference is made to its articles or sub-paragraphs. Ground (iv) obtains if the sentence does not correspond to the seriousness of the offence or the defendant’s personality. 76 .     Article 377 describes the procedure for an appeal hearing. Article 378 provides that an appeal court may uphold the court decision under review, quash the decision and discontinue the case, quash the decision and order re-examination of the case or amend the decision. 77 .     Article 388 sets out the requirements in terms of the content of the appeal decision (date, court, parties, arguments, reasons). If the appeal court orders the release of the defendant, that decision must be enforced immediately if the defendant is present at the appeal hearing. In 2003 this provision was amended to also require the appeal court to decide on the preventive measure (detention or other). 78 .     In a decision no.   1003-O-O of 19 May 2009 the Constitutional Court held that the appeal court’s power to keep a defendant in detention pending re ‑ examination of the detention issue after the quashing of the most recent detention order was implicit in the principle requiring a court decision for each period of detention. Such “interim” decisions of the appeal court were found to be capable of ensuring adequate judicial control, since the appeal court was empowered to decide in adversarial proceedings on the existence of factual circumstances which justified keeping the defendant in custody (see also ruling no.   6-П of 16 May 2007, and ruling no.   22 of 29 October 2009 by the Plenary Supreme Court of Russia (§ 32)). The relevant court was to apply the relevant principles set out in Articles 10, 108, 109 and 255 of the CCrP. B.     Operational and Search Activities Act 79 .     Section 6 of the Act contained a list of open and secret investigative activities including observation, searching of premises, monitoring of postal and other communications and tapping of telephone conversations. The above activities could be accompanied by the use of information systems and video and audio recording. Activities which affected the right to confidentiality of communications transmitted by means of telephone or mail and the right to respect for the home had to be authorised by a court order (section 8). III.     RESERVATION ISSUED BY THE RUSSIAN FEDERATION 80 .     The instrument of ratification of the Convention deposited by the Russian Federation on 5   May 1998 contained the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96 ‑ 1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27   October 1960, with subsequent amendments and additions...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 81.     The applicant complained that the conditions of her transport to and confinement at the courthouse had violated Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 82.     The Government submitted that the applicant had not complained to any public authority about the conditions of transport and confinement, which, in any event, had been acceptable (see paragraphs 67 and 68 above). 83.     The applicant argued that the problems relating to the transport of detainees had been due to the insufficiency of vehicles and convoy personnel rather than her particular circumstances. The Government had not substantiated their submissions by reference to any records concerning food supplies or transport. A.     Admissibility 84.     In so far as the requirement of exhaustion of domestic remedies is concerned, the Court reiterates that when a Contracting State seeks to shelter behind the requirement to exhaust remedies, it is for the State to establish the existence of available remedies that have not been utilised. However, the Government did not clearly identify the means of redress to which the applicant had failed to have recourse. It is not for the Court to ascertain what were the particular remedies alluded to (see, among others, Hajibeyli v. Azerbaijan , no. 16528/05, § 41, 10 July 2008). Thus, the Court is not convinced that the applicant was required to exhaust any specific remedies which were capable of affording her adequate redress in relation to her grievances concerning the conditions of her transport to and confinement at the courthouse. Hence, the Government’s argument is dismissed. 85.     The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B.     Merits 1.     General principles 86.     As the Court has held on many occasions,