CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 février 2013

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RUSSIA   (Application no. 152/04)             JUDGMENT       STRASBOURG   12 February 2013     FINAL   08/07/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yefimenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 22 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 152/04) 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 Sergey Aleksandrovich Yefimenko (“the applicant”), on 30 October 2003. 2.     The applicant, who had been granted legal aid, was represented by Ms   Anna   Borisovna Polozova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     On 16 June 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 4.     On 28 September 2009 and 14 September 2011 the parties were requested to submit further observations under Rule 54 § 2 (c) of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and is serving a prison sentence in the Chelyabinsk Region. A.     Criminal proceedings against the applicant 1.     The applicant’s arrest and trial in 2001-03 6.     The applicant was arrested on 13 March 2001 on suspicion of having murdered his aunt. He refused to testify until legal-aid counsel had been appointed.     On 16 March 2001 he was also accused of having unlawfully deprived Mr   P. of his liberty. He subsequently retained Mr   M. as counsel in the proceedings. Thereafter, the applicant refused Mr M.’s services for unspecified reasons.     On an unknown date legal-aid counsel D. was appointed to defend the applicant. The applicant and his co-accused were charged with fraud, abduction and several counts of murder. The applicant studied the case file between October and December 2001. 7.     In December 2001 the case was sent to the Chelyabinsk Regional Court for trial. The applicant’s request for trial by jury was rejected. A professional judge and two lay judges (Ms G. and Ms Y.) were assigned to try the case. 8 .     Throughout the proceedings the applicant was kept in detention. The trial court extended his detention on several occasions. The applicant appealed, alleging that the lay judges had been sitting in his case unlawfully because, contrary to the statutory requirement of the Lay Judges Act, they had served as lay judges more than once a year between 1998 and 2002. The Supreme Court of Russia dismissed appeals lodged by the applicant against the detention orders. In particular, on 22   November 2002 the Supreme Court upheld an order of 1   October 2002 by the presiding judge and the lay judges extending the detention. The appeal court stated as follows: “It appears from a note submitted by the Regional Court that new lists of lay judges in the region had not yet been compiled when the [applicant’s] trial date was set ...” 9.     On an unspecified date the applicant retained Mr Zh. as his counsel in the criminal proceedings. 10.     The examination of the case started in February 2003. At the court hearing on 13 February 2003 the applicant unsuccessfully objected to the participation of the lay judges in his case and asked for trial by jury. Later on, for unspecified reasons, Ms Y. was replaced by Ms Ch. on the bench of the trial court. 11.     On 18 February 2003 the presiding judge ordered counsel Zh. to be replaced on account of illness. From 20 February 2003 the applicant was assisted by legal-aid counsel Z. It appears that at certain stages in the proceedings the applicant was assisted by legal-aid counsel P. The trial court refused to admit a Ms K. as a lay representative. 12.     By a judgment of 24   April 2003 the trial court (the presiding judge and lay judges Ms G. and Ms Ch.) convicted the applicant of several offences (fraud, abduction, extortion, theft and several counts of murder) and sentenced him to twenty-two years’ imprisonment. 13.     The last day of the trial was apparently broadcast and commented upon by local television in April, August and September 2003. 14.     The applicant appealed against the trial court’s judgment to the Supreme Court of Russia. He argued, inter alia , that Z. had failed to lodge a statement of appeal “despite an earlier promise to do so” and that the composition of the trial court had been unlawful. The prosecutor also appealed against the trial court’s judgment. 15.     On 19   September 2003 the applicant made submissions before the appeal court by video link. According to the applicant, the appeal hearing lasted seven minutes, while the deliberations took only two minutes. The appeal court amended the judgment on appeal and reduced the applicant’s sentence to twenty-one years’ imprisonment. The appeal court made no specific findings regarding the composition of the trial court and observance of the applicant’s defence rights in the appeal proceedings. 2.     Subsequent events in 2004-07 16.     By letters of 19 March and 12 April 2004 the President of the Regional Bar Association rejected the applicant’s complaints against counsel Z. 17.     In October 2005 and then on 21 December 2006 the Russian Supreme Court reduced the applicant’s prison term to twenty years and six months. 18 .     In reply to the applicant’s request for information, the Regional Court and the Regional Parliament stated that they had no information concerning lists of lay judges or whether any lists had been destroyed (see also paragraph 24 below). 19.     On 8   February 2007 the Constitutional Court of the Russian Federation examined a complaint lodged by the applicant and ruled that legal-aid counsel should have been appointed for the appeal proceedings. Although it declared the applicant’s constitutional complaint inadmissible, it found as follows:   “...2.     The decisions taken in [the applicant’s] case, which were based on an unconstitutional interpretation of Article 50 § 1 (1) and (5) and § 3, should be re ‑ examined in accordance with the applicable procedure, if there are no obstacles to doing so”. 20 .     On 13 June 2007 the Vice-President of the Supreme Court rejected the applicant’s renewed complaint about his conviction, stating that “the mere fact that the lay judges had served more than once in a year could not raise doubts as to the legitimacy of their mandate and, by implication, the lawfulness of the trial bench”. 3.     Subsequent events in 2009-11 21.     On 10 June 2009 the Presidium of the Supreme Court re-examined the criminal case against the applicant by way of supervisory review, set aside the appeal decision of 19 September 2003 and ordered a fresh appeal hearing. Referring to Articles 97, 108 and 255 of the Code of Criminal Procedure, the Presidium ordered the applicant’s detention pending the appeal proceedings. 22.     On 3 September 2009 an appeal hearing was held before the Supreme Court, which set aside the trial court’s judgment of 24 April 2003. The appeal court stated, inter alia , that there had been no lists of lay judges in the Regional Court at the material time; that the lay judges had sat in other cases in 2002-03; and that there had been a “violation of [the applicant’s] defence rights and his right to a jury trial”. The appeal court ordered a retrial before the Chelyabinsk Regional Court and ordered the applicant to remain in custody until 10   November 2009 pending the retrial. 23.     The retrial started in September 2009. However, on 6 April 2010 it was stopped because the Presidium of the Supreme Court was asked to carry out a supervisory review in respect of the appeal decision of 3   September 2009. 24 .     On 1 September 2010 the Presidium of the Supreme Court set aside the appeal decision of 3 September 2009 and ordered a retrial. However, unlike the court decision of 3 September 2009, the Presidium removed any reference to (i) the absence of a list of lay judges in the Regional Court; (ii) whether the lay judges had sat in other cases in 2002-03; (iii) “the violation of [the applicant’s] defence rights and his right to a jury trial”. As a result, the Presidium quashed the trial court’s judgment of 24   April 2003 in the following terms: “... As explained by the deputy President of the Regional Court, the lists of lay judges for district and town courts in the region had been approved between 29   June 2000 and 29 November 2001 ... The lists for eight district courts in the region were not submitted for approval. The lay judges in [the applicant’s] case were registered as residing in Chelyabinsk. There is no indication that their names were added to the list of lay judges ... In those circumstances the trial court was not established by law. Under Article 381 § 2 (2) of the Code of Criminal Procedure (CCrP), the unlawful composition of the court is a ground for quashing the judgment in all circumstances...” The Presidium also quashed several detention orders issued by the trial court during the trial in 2002. Lastly, with reference to Articles 108 and 255 of the CCrP, the Presidium ordered the applicant to remain in custody pending the retrial. 25.     The retrial took place between October 2010 and February 2011. At the preliminary stage of the retrial, the applicant was assisted by legal-aid counsel B. and subsequently, at his own request, by legal-aid counsel D. In the meantime, in December 2010, having consulted his lawyer, the applicant waived the opportunity for trial by jury and agreed that the case should be examined by a professional judge. 26 .     New counsel K. was appointed in January 2011 to replace counsel D., who had to participate in another trial. At a hearing on 11 January 2011, in reply to a question from the presiding judge, the applicant replied that he “had not yet fully discussed the defence position” with his counsel. At a hearing on 12 January 2011 the applicant stated that he had talked to his counsel and that they had discussed the defence position, which had prompted the applicant to amend his earlier strategy and plead guilty to the murder of his aunt. It also appears that (at this or a subsequent hearing) counsel K. supported the applicant’s and his co-defendant’s request for the prosecution to be discontinued on account of the expiry of the time-limits on one of the charges. The applicant also stated that, having talked to his counsel, he accepted that there was no longer any need to call the remaining witnesses or victims. Thus, the applicant accepted that it was appropriate to rely on the relevant material from the case file. 27 .     At a hearing on 13 January 2011 the presiding judge noted that the applicant had lodged an appeal against an earlier procedural order, also requesting the appointment of Mr D. as counsel. In that connection, the presiding judge asked whether the applicant was dissatisfied with counsel K. The applicant replied that he was satisfied, that counsel was sufficiently qualified to defend him and that he did not want him replaced. 28.     On 1 February 2011 the Regional Court discontinued the case on one of the charges. On 16 February 2011 the Regional Court convicted the applicant of murder, kidnapping and extortion. The court sentenced him to a term of imprisonment of nineteen years and six months. As required under Article 72 of the Russian Criminal Code, that term was to be counted from 13 March 2001, to take into account the preceding periods of the applicant’s detention pending trial and pursuant to the trial court’s judgment of 24   April 2003. 29.     The applicant and counsel K. appealed to the Supreme Court of Russia. 30.     The applicant complained about counsel K. to the President of the local bar association. The latter replied that the applicant had not raised during the trial the issue of counsel’s attendance at the remand centre, and that he had discussed the defence position with counsel on several occasions before the court hearings and in the holding room in the courthouse. 31.     In March 2011 the Supreme Court appointed Ms Polozova as defence counsel. Both Ms Polozova and Mr   D. were notified of the date and time of the appeal hearing. Mr D. informed the court that he had no authority to assist the applicant in the appeal proceedings and nor had he been retained as counsel by the applicant or his family. Ms Polozova also informed the court that she had no contract with the applicant, besides which she was busy and thus unable to accept the case as legal-aid counsel. The Supreme Court therefore appointed Ms Chi. as defence counsel. The relevant register indicates that she studied the case file between 26 April and 5 May 2011. Counsel Chi. also attended the appeal hearing on 12 May 2011. The applicant participated in the appeal hearing by video link from a detention facility. The applicant refused to be assisted by counsel Chi. The appeal court dismissed his objection and counsel Chi. continued to assist him. 32 .     On 12 May 2011 the Supreme Court upheld the judgment of 16   February 2011 on appeal. The appeal court held as follows: “[The applicant] was assisted by counsel K. at the trial; no challenge was lodged against her. The information in the verbatim record of trial conflicts with the allegation that the defence counsel was ineffective. There is also an indication that counsel did not meet [the applicant] in the remand centre. However, the question of the need for such a meeting was not raised before the court. While stating at the beginning of the trial that the defence position had not been fully discussed, [the applicant] did not ask for additional time. Subsequently, [the applicant] confirmed on numerous occasions that counsel had provided advice and discussed the defence position with him ... During the preliminary hearing the court had granted [the applicant’s] request to be assisted by advocate D. He was replaced during the trial owing to his participation in another criminal trial ... ” B.     Conditions of detention 1.     Kurchatovskiy temporary detention centre 33 .     According to the applicant, from 13 to 30 March 2001 he was detained in Kurchatovskiy temporary detention centre in the town of Chelyabinsk ( ИВС Курчатовского района ). He was not provided with a mattress, bedding or any personal hygiene products and had no access to a shower. The cell was dirty, damp and cold, and had no ventilation. The applicant had no out-of-cell activities and was confined to his cell twenty-four hours a day. 2.     Remand centre 34.     From 30 March 2001 to 28 October 2003 the applicant was detained in Chelyabinsk remand centre no.   74/1 ( ФБУ ИЗ-74/1 ГУФСИН РФ по Челябинской области ). Apparently, he was also kept in this remand centre for a period in 2005. (a)     The applicant’s account 35.     The applicant provided the following description of his conditions of detention in the remand centre in 2001-03. 36.     From 17   April 2001 to 29 April 2003 he was kept in cell no.   77, which measured 7-8 square metres and was designed for six inmates (for four inmates “later on”). It actually accommodated three to seven detainees. Hence, at times they had to take turns to sleep. Artificial light was on day and night. Between 30   March and 20 April 2001 the applicant was not provided with bedding in the remand centre; a blanket was provided only in late 2002. No towels or tableware were provided. 37.     From 29 April to 28 October 2003 the applicant was kept in cell no.   80, which measured 7-8 sq. m and was designed for four inmates. It actually accommodated up to five inmates. Hence, at times they had to take turns to sleep. 38.     In respect of all the cells the applicant alleged that the lavatory pan situated in the corner was separated from the living area only by a partition. A table was placed one metre from the pan. The cells were not ventilated, and the lack of ventilation was exacerbated by the fact that other detainees smoked. Until January 2003 the cell windows were covered with metal shutters in addition to slanted bars. There was no access to hot water in the cells. 39.     Throughout his detention in the remand centre the applicant had no out-of–cell activities other than a daily one-hour walk in the courtyard of the remand centre. He spent the remainder of the day confined to his cell. Catering and medical services were unsatisfactory. During the summer period the applicant had no access to a hot shower. (b)     The Government’s account 40 .     The Government submitted the following data concerning the cell measurements and population.   Cell no.   77 measured 9.3 sq. m and accommodated, at the relevant time, four detainees; cell no.   80 measured 9.3 sq. m for four detainees; cell no.   83 measured 9.3 sq. m for four detainees; cell no.   91 measured 30.2 sq. m for twelve detainees; cell no.   96 measured 9.3 sq. m for four detainees; cell no.   154 measured 23.1 sq. m for eight detainees; and cell no.   1 measured 20.8 sq. m for six detainees. 41.     The Government concluded from the above data that the statutory requirement regarding floor space per detainee (four sq. m) had not been complied with in cells nos.   77, 80, 83 and 96. The remaining material conditions of detention (lights, ventilation, individual bed and bedding, food) were decent. There were no metal shutters on the cell windows. There were some metal bars on the windows, which did not impede natural light. The toilets were separated from the main area by a partition, approximately one to one and a half metres in height. 42 .     The above submissions were based on the information provided by the head of the detention facility in 2008, as well as on various supporting statements allegedly made by the prison staff (but signed by the chief prison officer). The Government also submitted copies of schedules relating to “sanitary measures” for detainees between 2001 and 2003. 3.     The applicant’s complaints 43.     The applicant complained about his detention to various public authorities. Allegedly, on 26, 28 March and 2 April 2001 the applicant and his counsel complained to the Prosecutor’s Office of the Chelyabinsk Region that the conditions of detention in the temporary detention centre were unacceptable. On 10 September 2001 a prosecutor refused to institute criminal proceedings in relation to the allegation of unlawful detention in the temporary detention centre. C.     Correspondence with the Regional Bar Association, the International Protection Centre and the European Court 44.     The applicant stated that several letters from the European Court to the applicant in 2004-05 had been inspected by staff of prison no.   1 in the Chelyabinsk Region. The majority of these letters were standard correspondence relating to the first introduction letter or acknowledging receipt of the applicant’s correspondence. A letter dated 19 March 2004 requested the applicant to further substantiate his complaint about the conditions of detention in the Chelyabinsk remand centre. 45.     Each letter bore a stamp indicating its registration number and the date of receipt by the detention facility. Subsequently, the applicant argued that the practice of monitoring correspondence continued to apply, and submitted copies of the Court’s letters to the applicant between 2006 and 2008 which also bore similar stamps of various detention facilities. 46 .     Correspondence sent by the applicant to the European Court in 2003 ‑ 08 was accompanied by cover letters compiled by the staff of various detention facilities. Some cover letters indicated the nature of the correspondence (for instance, submission of additional materials, notification of changes in the applicant’s case) and/or the number of pages submitted by the applicant for dispatch. Some of the applicant’s own letters also had a prison stamp indicating the date when each letter had been submitted to the “special unit”. For instance, in his letter of 7   June 2011 the applicant informed the Court of new developments in the proceedings at the national level and of his intention to complain of further violations of the Convention. This letter bore the stamp of Chelyabinsk remand centre no.   74/3 and the date of receipt in the “special unit”. In July 2011 the Court forwarded this letter to the applicant’s representative before the Court. In August 2011 the representative lodged a complaint before the Court in relation to the inspection of this letter by prison authorities. Subsequently, the applicant argued that he had handed the letter of 7   June 2011 to a prison officer, intending to ask him to provide him with an envelope. The officer reported to him superior that, despite having explained to the applicant that letters to the Court had to be submitted in a sealed envelope, the applicant had insisted on dispatching the letter and had not asked for an envelope. The officer was reprimanded for summarising the contents of the letter in the cover letter. 47.     The applicant also wrote to the International Protection Centre (IPC), which is a non-governmental organisation in Moscow which, inter alia , provides information about Convention proceedings and assists applicants before the Court. In reply to the applicant’s letter, on 28 April 2004 the IPC informed him of the procedure following the lodging of an application form and provided advice as to how to obtain copies of documents in support of the application pending before the Court. The IPC’s letter bore the stamp of prison no. 1, indicating the internal registration number of the correspondence and its receipt date. 48.     Lastly, the applicant wrote several letters to the regional bar association. By letters of 19 March and 12 April 2004 the vice-president of the bar association dealt with his complaint against counsel Z., in particular as regards his failure to lodge a statement of appeal in 2003. In a letter of 22   December 2004, the vice-president informed the applicant that he was unable to assist him as counsel or to provide any further consultation regarding the provisions of the criminal law and procedure. All the letters from the bar association bore the stamp of prison no.   1, indicating the internal registration number or the receipt date. 49.     The applicant unsuccessfully complained to the regional prosecutor’s office that his correspondence with the regional bar association and the IPC had been inspected by the prison administration, despite the allegedly privileged status of such correspondence. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Lay Judges 50 .     Pursuant to the Lay Judges Act in force at the material time, lay judges sat as non-professional judges in civil and criminal cases (section 1(2) of the Lay Judges Act). Lists of lay judges for district courts were compiled by local authorities and were validated by the regional legislature (section 2). The president of a district court drew at random from the list the names of lay judges to be called to sit on a bench (section 5). Lay judges were called to serve for a period of fourteen days, or as long as the proceedings in a given case lasted. Lay judges could not be called more than once a year (section 9). 51.     A new Code of Criminal Procedure entered into force on 1 July 2002. Pursuant to Article 30 § 2 (3), criminal cases concerning serious and particularly serious offences are examined by a bench of three professional judges. However, under the transitional rules, until 1   January 2003 such criminal cases were to be examined by a single judge. That provision was amended in May 2002, and read as follows: “...until 1 January 2004 criminal cases which concern serious and particularly serious offences shall be examined by a single judge or, at the request of the accused prior to a court hearing, by a [professional] judge sitting with two lay judges.” B.     Legal representation in criminal proceedings 52.     Article 48 of the Russian Constitution provides that everyone has a right to adequate legal assistance. Under the Code of Criminal Procedure in force at the material time, a suspect or accused has the right to defend himself or be defended by counsel and/or his legal representative (Article 16). A court, prosecutor or investigator advises the suspect or accused of his rights. In certain cases the authority in charge of the case ensures mandatory representation of the suspect or accused by counsel or his legal representative. In certain circumstances such representation is free of charge. 53.     A suspect or accused or his legal representative, or any other person instructed by the suspect or accused, may retain counsel (Article 50). The suspect or accused may retain several lawyers. At the request of the suspect or the accused, the investigator or court will ensure the participation of counsel. If counsel fails to appear within five days of the request, the investigator or court may invite the suspect or accused to retain another counsel or, in the event of refusal to do so by the suspect or accused, appoint counsel for them. If within twenty-four hours of arrest or detention privately retained counsel does not appear, the investigator or court will appoint new counsel. If the person concerned has waived his right to counsel, a pending investigative measure may be carried out without counsel, except in certain circumstances. If counsel is appointed by the investigator or court his fees are paid by the State. 54.     Representation by counsel is mandatory if the suspect or accused has not waived his right to legal representation (Article 51). Representation by counsel is mandatory if the suspect or accused has not reached the age of majority; is unable to represent himself because of a physical or mental disability; has no proficiency in the language used at the trial; has been charged with a criminal offence punishable by more than fifteen years’ imprisonment, life imprisonment or death; or is being tried by jury. If the suspect or accused has not retained counsel, the investigator or court appoints counsel for him. 55.     In a decision dated 18 December 2003 (no.   497-O), the Constitutional Court held that nothing in the wording of Article 51 suggested that it was not applicable to appeal proceedings. That position was subsequently confirmed and developed in seven decisions (nos.   251, 252, 253, 254, 255-О-П, 257-О-П, 276-O-П) delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appeal proceedings should be provided on the same conditions as during the earlier stages of the proceedings. No limitation of the right of an accused to legal assistance was allowed unless he or she had waived his or her right to such representation. 56.     Under the Advocates Act 2002, an advocate must comply with the legal provisions concerning compulsory representation by counsel in criminal proceedings when appointed by an investigating authority or a court (section 7). An advocate is not allowed to revoke his consent or assignment to represent a person (section 6(4)(6)). 57.     Pursuant to the 2003 Code of Advocates’ Professional Ethics, an advocate must rescind his agreement to represent the client if, after having agreed to represent him or her (except during a preliminary investigation and trial proceedings) it becomes clear that he cannot represent that client. The advocate must notify his client accordingly in advance, if at all possible (section 10). An appointed or privately retained advocate in criminal proceedings cannot revoke his consent to represent a client and must represent him or her until the stage of drafting and lodging a statement of appeal against the trial judgment (section 13 § 2). An advocate must appeal against a trial judgment at the client’s request, or if (i) there are legal grounds for a reduction in the sentence or (ii) the client is a juvenile or has a mental disability and the trial court has disagreed with counsel and imposed a heavier sentence or convicted his client of a more serious offence (section 13(4)). An advocate will, as a rule, appeal against the trial court’s judgment if (i) the client is a juvenile or has a mental disability; (ii) the trial court disagreed with counsel and imposed a heavier sentence; or (iii) the advocate considers that there are legal grounds for a reduction in the sentence (section 13(4) in fine ). These provisions were amended in 2005 and 2007 and now read as follows:   “2.   An appointed or privately retained advocate in criminal proceedings cannot revoke his consent to represent a client, except in the cases set forth in the law, and shall defend the client, including, if necessary, by drafting and lodging an appeal on points of law against the trial court’s judgment ... 4.   An advocate shall appeal against a trial court’s judgment (i) if so requested by his client; (ii) if there are grounds for setting that judgment aside or for amending it in favour of his client, or (iii) as a rule, if the court has disagreed with the advocate and imposed a heavier sentence on or convicted a juvenile of a more serious offence ...” 58.     Legal-aid counsel in a criminal case are paid between 275 and 1,100 Russian roubles (RUB) per day for their services, including for meeting clients in a detention facility (order no. 199/87н of 15 October 2007 by the Federal Ministries of Justice and Finances; decisions of 16   March and 20 July 2011 by the Presidium of the Supreme Court of Russia). C.     Conditions of detention 59.     Under the 1996 internal regulations for temporary detention centres (Chapter 3) in force at the material time, each detainee must be provided free of charge with an individual bed (if possible), individual bedding and tableware. Each cell must have a table and seat, a lavatory pan, and access to tap water. Detainees must be allowed to have a shower at least once a week. Each detainee must be afforded four square metres of cell space (Rule 3.3 of the Regulations). 60.   Under the 2000 internal regulations for remand centres in force at the material time, each detainee must be provided free of charge with a bed, bedding, towel, and tableware (Rule 42). Each cell must have a table and seat, a lavatory pan, and access to tap water (Rule 44). Detainees are provided free of charge with three hot meals a day (Rule 46). Detainees must be allowed to have a shower at least once a week, and bedding is to be changed weekly (Rule 47). Detainees are to have one hour’s daily exercise in the courtyard of the remand centre (Rule 138). D.     Convicts’ correspondence 61 .     Article 91 § 2 of the Code of Execution of Sentences, as amended on 8 December 2003, provides that detainees’ correspondence is subject to monitoring by the prison authorities. Correspondence with courts, prosecutors, prison officials, the Ombudsman, the public monitoring board and the European Court is not subject to monitoring. Correspondence between a convict and counsel (or another authorised representative) is not subject to monitoring, except when the administration has good reasons to believe that it is aimed at criminal ends. In that event the correspondence is monitored on the basis of a reasoned decision by the prison governor or his deputy. 62 .     Under the 2001 Internal Prison Regulations, as amended in 2004, all detainees’ correspondence was to be processed by the prison authorities. Correspondence was to be placed in mailboxes or handed to staff unsealed (Chapter 12). On 3 November 2005 new Regulations were adopted. Rule 50 provides that detainees must put their unsealed letters into mailboxes or give them to prison staff, except for correspondence which is not subject to monitoring. THE LAW I.     ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION 63.     The applicant complained under Article 3 of the Convention that he had been detained in appalling conditions in Kurchatovskiy temporary detention centre and Chelyabinsk remand centre no.   74/1 from March 2001 to October 2003. 64.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 65.     The applicant also argued that he did not have effective remedies for those complaints, in breach of Article 13 of the Convention: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     The parties’ submissions 1.     The Government 66.     The Government submitted that the applicant had been detained in the temporary detention centre in March 2001, whereas the complaint before the Court had been raised in 2003. Thus, he had failed to comply with the six-month rule. The temporary detention centre and the remand centre were supervised by different authorities and there was thus no reason to consider the applicant’s detention in both facilities as a continuing situation. 67.     The Government argued that the applicant had not lodged any complaint relating to the conditions of detention in the temporary detention centre. The applicant had not challenged the authorities’ replies relating to his lengthy and allegedly unlawful detention in that centre. Nor had he appealed to the supervising prosecutor’s office against the decision of 10   September 2001 refusing to institute criminal proceedings in respect of the allegation of unlawful detention in the centre. Subsequently, the Government conceded that the applicant had also complained about the conditions of detention to the supervising prosecutor’s office. The applicant had lodged no complaints relating to the conditions of his detention in the remand centre. 68.     Concerning the complaint under Article 13 of the Convention, the Government argued that the applicant would have some prospect of success if he lodged a civil claim for compensation on account of unsatisfactory conditions of detention. Under Russian law, a prosecutor’s office was also empowered to take measures in relation to this issue. 69.     The Government acknowledged that during some periods of detention in the remand centre the statutory requirement of floor space of four square metres per detainee had not been complied with. However, this had not necessarily entailed a violation of Article 3 of the Convention. The other material conditions of detention (such as an individual bed, ventilation, access to natural light, and food) complied with the requirements of Russian law (see, for details, paragraphs 40-42 above). 2.     The applicant 70.     The applicant argued that the conditions of detention in both facilities had been equally bad and should therefore be treated as a continuing situation. The Government had adduced no evidence in relation to the temporary detention centre and should not be absolved from responsibility merely on account of the expiry of the period for keeping relevant records and logbooks. 71.     The applicant submitted that the regional prosecutor’s office had not dealt with his complaints relating to the temporary detention centre. His other complaints had not been dispatched by the staff of the detention facility. B.     The Court’s assessment 1.     Admissibility 72.     The Court reiterates that a period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 78, 10 January 2012). Short periods of absence during which the applicant is taken out of the facility for interviews or other procedural acts would not affect the continuing nature of the detention. However, the applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation”. Complaints about the conditions of detention must be lodged within six months of the end of the situation complained about or, if there is an available domestic remedy, of the final decision in the process of exhaustion (ibid.). 73.     The Court observes that the applicant was kept in the temporary detention centre for several days in March 2001 (see paragraph 33 above). Complaints about the conditions of detention there and in the remand centre, and about the absence of effective remedies, were first raised in substance before the Court in the application form dated 2 February 2004. 74.     It has not been suggested that during his detention in the temporary detention centre and later on the applicant had recourse to any remedies which could have offered a reasonable prospect of success or otherwise affected the application of the six-month rule in favour of the applicant (see, for comparison, Pavlenko v. Russia , no. 42371/02, §   75, 1   April 2010; Roman Karasev v. Russia , no. 30251/03, §§   40-43, 25   November 2010; and Orlov v. Russia , no. 29652/04, §§ 64-65, 21 June 2011). It is also noted that after his detention in the temporary detention centre the applicant was transferred to a different type of detention facility – a remand centre – where he was detained until October 2003. Thus, there was no continuing situation in the present case. It follows that the complaint in respect of the temporary detention centre has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention (see also Fetisov and Others v. Russia , nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, §§ 73-79, 17   January 2012). 75.     As regards the conditions of detention in the remand centre in 2001-03, the Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy for complaining about inhuman conditions of detention. Thus, the Court finds it necessary to join the Government’s objection to the merits (see Ananyev and Others , cited above, § 70). The Court further considers that this part of the application 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. Thus, it should be declared admissible. 2.     Merits (a)     Article 13 of the Convention 76.     In Ananyev and Others (cited above, §§   93-119) the Court carried out a thorough analysis of domestic remedies in the Russian legal system in respect of a complaint relating to the material conditions of detention in a remand centre. The Court concluded in that case that it had not been shown that the Russian legal system offered an effective remedy that could be used to prevent the alleged violation or its continuation and provide the applicant with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention. Accordingly, the Court dismissed the Government’s objection as to the non-exhaustion of domestic remedies and found that the applicants did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention. 77.     Having examined the Government’s arguments, the Court finds no reason to depart from this conclusion in the present case. Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court finds that there has been a violation of Article 13 of the Convention. (b)     Article 3 of the Convention 78.     The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence on the material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Ananyev and Others , cited above, § 123). 79.     The Court notes that the Government’s observations contain enclosures, mostly consisting of certificates issued in 2008. However, these documents cont