CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 octobre 2013

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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 } .sF4F12EF6 { width:180.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION             CASE OF SHCHERBAKOV v. RUSSIA (No. 2)   (Application no. 34959/07)                     JUDGMENT     STRASBOURG   24 October 2013     FINAL   24/01/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shcherbakov v. Russia (no. 2), The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 1 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 34959/07) 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 Igor Nikolayevich Shcherbakov (“the applicant”), on 9 June 2007. 2.     The Russian Government (“the Government”) were represented by Mr G.   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been detained in appalling conditions and for an unreasonably long time pending criminal proceedings against him; that an appeal he lodged against a detention order of 1   November 2006 had been considered belatedly; that the criminal proceedings against him had been unreasonably lengthy; and that he did not have an effective remedy in respect of his complaints. 4.     On 27 May 2010 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). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1955 and lives in Tula. A.     The applicant’s arrest and pre-trial detention 1.     Detention pending investigation 6 .     On 16   November 2004 the applicant was arrested on suspicion of extortion. 7.     On 18   November 2004 the Proletarskiy District Court of Tula authorised his pre-trial detention. The court noted as follows: “... in view of the nature of the charges against [the applicant], the investigating authorities have compelling reasons to believe, that [he] may, if released, abscond, continue to commit crimes, or intimidate witnesses to impede the establishment of the truth ... Having regard to the nature of the charges against [the applicant], [the court] does not consider it possible to apply a less severe preventive measure than detention.” 8.     On 29   November 2004 the applicant was charged with robbery. 9.     On 14   January 2005 the Tsentralniy District Court of Tula extended the applicant’s detention pending investigation until 13   April 2005. The court accepted the reasoning of the investigator, who suggested that the applicant might, if released, continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. On 9   February 2005 the Tula Regional Court upheld the decision of 14   January 2005 on appeal. 10.     On 12   April and 13   May 2005 the District Court further extended the applicant’s detention until 16   May and 28   June 2005 respectively. On both occasions the court used the following reasoning: “... [the court] does not consider it feasible to release [the applicant], given that he has committed several serious offences and may continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond.” 11.     On 23   June and 21   July 2005 the District Court extended the applicant’s detention until 28   July and 28   August 2005 respectively. In each of the detention orders the court noted as follows: “[The court] does not consider it feasible to release [the applicant], given that he has committed several offences, some of which were very serious, and may, if released, continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond.” 12.     On 5   August 2005 the Regional Court upheld the decision of 23   June on appeal. 13.     According to the Government, in 2004-2005 a number of witnesses complained to the investigator that the applicant had threatened them while at liberty. According to the applicant, it was the investigator who encouraged the witnesses to complain. On an unspecified date the witnesses confirmed the applicant’s allegations in court. 2.     Detention pending trial 14.     On 2   August 2005 the District Court received the case file for the trial, which involved six defendants, including the applicant. 15.     On 24   August 2005 the District Court fixed the trial date for 28   September 2005 and extended the detention of five of the defendants until 28   February 2006. The court noted, in particular, as follows: “Having regard to the fact that Ch., [the applicant], M., K., and A. are charged with particularly serious offences ..., they may continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. The court does not discern any reason why they should be released.” 16.     On 2   September 2005 the Regional Court upheld the decision of 21   July 2005 on appeal. 17.     On 28   September 2005 the Regional Court considered an appeal lodged by the applicant against the court order of 24   August 2005 and upheld it in substance, changing the end date of the applicant’s detention to 2   February 2006. 18.     On 1   February 2006 the District Court extended the applicant’s detention until 2 May 2006. The court referred to the gravity of the charges against the applicant, noting that he might, if released, continue to commit crimes and put pressure on witnesses. On 17   March 2006 the Regional Court upheld the decision of 1   February 2006 on appeal. 19.     On 24   April 2006 the District Court extended the applicant’s detention until 2   August 2006, reiterating verbatim its reasoning of 1   February 2006. On 26   May 2006 the Regional Court upheld the decision on appeal. 20.     On 1   August 2006 the District Court extended the detention of five of the defendants, including the applicant, until 2   November 2006. The court stated as follows: “Having heard the parties to the proceedings and having studied the material in the case file, the court does not discern any reason why the earlier imposed preventive measure in the form of custody should be lifted or replaced. [The defendants] are charged with serious and particularly serious criminal offences ... The court has not received any information to suggest that the defendants are unfit for detention on health grounds.” 21.     On 1   September 2006 the Regional Court upheld the decision of 1   August 2006 on appeal. 22 .     On 1   November 2006 the District Court extended the detention of five of the defendants until 2   February 2007. The court reiterated that they had been charged with particularly serious offences and might continue to commit crimes, intimidate witnesses to interfere with the administration of justice, or abscond. On 9   November 2006 the applicant lodged an appeal against the decision of 1   November 2006. 23 .     On 13   December 2006 the Regional Court upheld the decision of 1   November 2006 on appeal. 24.     On 1   February 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2   May 2007. The court noted as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. If released, the defendants may continue to commit crimes or put pressure on witnesses and the victims. The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 25.     On 26   April 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2   August 2007. The court stated as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. A number of witnesses have not yet been questioned. If released, the defendants may put pressure on witnesses and the victims. The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 26.     On 16   May 2007 the Regional Court upheld the decision of 1   February 2007 on appeal. 27.     On 31   July 2007 the District Court extended the detention of the applicant and three of his co-defendants until 2   November 2007. In particular, the court noted as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. Prosecution witnesses B. and E. have not yet been questioned. If released, the defendants may put pressure on witnesses; given the character of each of the defendants, they may abscond, continue to commit crimes, intimidate witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice. ... The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 28.     On 15   August 2007 the Regional Court upheld the decision of 26   April 2007 on appeal. 29.     On 30   October 2007 the District Court extended the detention of the applicant and three of his co-defendants until 8   February 2008. The court reasoned as follows: “... the court concludes that ... the [defendants’] pre-trial detention should be extended ... [They] are charged with particularly serious and serious criminal offences. Witness E., expert witnesses and lay witnesses who participated in the investigation ... have not yet been questioned. If released, the defendants may put pressure on witnesses; given the character of each of the defendants, they may abscond, continue to commit crimes, intimidate witnesses and other parties to the proceedings, or otherwise interfere with the administration of justice. ... The [defendants’] release from custody would seriously hamper the examination of the case. The reasons justifying the remand of the defendants in custody have not ceased to exist.” 30.     On 21   December 2007 the Regional Court adjourned an appeal by the applicant against the detention order of 30   October 2007 to ensure his participation in the hearing. On 26   December 2007 the Regional Court upheld the decision of 31   July 2007 on appeal. 31.     On 23   January 2008 the Regional Court upheld the decision of 30   October 2007 on appeal. 32.     On 31 January 2008 the District Court extended the applicant’s pre-trial detention until 2   March 2008. The court referred to the gravity of the charges against the applicant and the complexity of the case. On 27   February 2008 the Regional Court upheld the decision of 31   January 2008 on appeal. The applicant was convicted by the District Court on 28   February 2008 (see paragraph 36 below). B.     Criminal court proceedings 33 .     Following the applicant’s arrest on 16   September 2004 and the preliminary investigation, on 2   August 2005 the criminal case file, comprising seventeen   volumes of documents, was received by the District Court for the trial. 34.     The six defendants, including the applicant were charged with numerous counts of fraud, robbery, threats to kill, extortion and money laundering. The trial court was to question fifty witnesses and to study substantial volumes of documentary evidence. The court held one-hundred ‑ and-twenty-five hearings. 35.     The Government provided the following information as regards adjournments of the trial hearings: Date Reason for adjournment 28   September and 31   October 2005 The applicant asked for additional time to study the case file. From 1 to 5   December 2005 The trial was stayed. From 7   December 2005 to 30   January 2006 The trial was stayed. 30   January 2006 The applicant and his lawyer asked for certain witnesses to be summoned for questioning. 20   February 2006 A number of defendants could not attend the hearing on account of illness. From 29   March to 24   April 2006 The trial was stayed. From 17 to 24 May 2006 The trial was stayed. 24   May 2006 The judge was on sick leave. 29   June 2006 The defendants remanded in custody were not transported to the courthouse. 14   July 2006 One of the defence counsel failed to appear. 6   September 2006 The defendants remanded in custody were not transported to the courthouse. 20   September 2006 One of the defence counsel failed to appear. 4   October 2006 One of the defence counsel failed to appear. According to the Government, witness F. failed to appear from that day on in court until the appeal hearing. From 11 to 25   October 2006 The trial was stayed. 25-26   October 2006 One of the defence counsel failed to appear. 20 and 27   March 2007 One of the defence counsel failed to appear. 24 and 26   April 2007 One of the defence counsel failed to appear. 6, 13 and 14   June 2007 One of the defence counsel failed to appear. 24 and 31   July 2007 One of the defence counsel failed to appear. 2   August to 11   September 2007 The judge was on annual leave. 11   September 2007 One of the defence counsel failed to appear. 36 .     On 28   February 2008 the District Court found the applicant guilty of extortion and fraud, and sentenced him to three-and-a-half years’ imprisonment. The applicant appealed, maintaining his innocence. 37.     On 15   May 2008 the applicant was released upon having served his sentence. 38 .     On 24   December 2008 the Regional Court reclassified the applicant’s conviction without changing the imposed sentence. C.     Conditions of detention 1.     Temporary detention unit 39.     From 16 to 18   November 2004 the applicant was detained in a temporary detention unit at the regional police headquarters. According to the Government, the applicant was held in a cell measuring 18.36 square metres. The cell had four sleeping places, but the applicant was the only occupant. A vent in the window permitted access to fresh air. There were two windows in the cell covered with metal grills, which did not prevent access to daylight. The toilet was located in the left corner of the cell, some 2.7 metres away from the dining table and some 2.4 metres away from the nearest sleeping place. It was separated from the living area of the cell by a 1.35-metre-high wooden partition. 40.     According to the applicant, there was no running tap water in his cell. The lighting was insufficient, and he was not given the opportunity to take any outdoor exercise. 2.     Remand prison no.   IZ-71/1 in Tula (a)     The description provided by the Government 41.     The Government provided the following information as regards the conditions of the applicant’s detention in remand prison no.   IZ-71/1 in Tula from 19   November 2004 to 15   May 2008: Period of detention Cell no. Surface area in square metres Number of beds Number of inmates From 19   November 2004 to 18   March 2005 20 9.8 6 4-6 From 18   March 2005 to 9   June 2007 36 35 21 14-19 From 9   June to 2   July 2007 54 10.7 6 2-4 From 2   July to 1   August 2007 36 35 21 14-16 From 1   August 2007 to 15   May 2008 48 29 12-14 7-10 42.     All the cells in the remand prison were equipped with a ventilation system ensuring adequate fresh air circulation. 43.     The windows in the cells were covered with metal grills, which did not prevent access to daylight. The cells had electric lighting, which was   constantly switched on. From 10 p.m. to 6 a.m. the cells were lit with 60-watt bulbs. This night lighting was used for surveillance purposes and to facilitate the use of the toilet. 44.     The toilet was located in the corner of each cell, some 2.5 metres away from the nearest bed and some 3 metres away from the dining table. It was separated from the living area of the cell by a 1.5-metre-high wooden partition and a wooden door, which ensured sufficient privacy for the person using it. 45.     Inmates were allowed at least an hour’s daily outdoor exercise in designated exercise areas measuring 30.8 square metres on average. The exercise areas were covered with metal wire mesh, with openings measuring 17 x 17 square centimetres. 46.     The applicant was not confined to his cell all the time. On numerous occasions he met with the investigator for questioning and participation in other investigative activities. He had meetings with his lawyers and visits from his family. According to copies of the relevant records of the remand prison, none of the meetings or visits lasted any longer than two hours. The Government’s submissions on the issue can be summarised as follows: Year Number of meetings 2004 The applicant had four meetings with his lawyer and one meeting with the investigator. He had two family visits. 2005 On fifteen occasions the applicant met with his lawyers. He had forty-eight meetings with the investigator and three family visits. 2006 The applicant had twelve meetings with his lawyers and two meetings with the investigator. He had six family visits. 2007 The applicant had thirty-three meetings with his lawyers. He met with the investigator twice. 2008 The applicant met with his lawyers four times. He met with the investigator twice and two family visits. (b)     The description provided by the applicant 47.     According to the applicant, the number of inmates detained in remand prison no.   IZ-71/1 in Tula was much higher than the number suggested by the Government. In particular, he submitted that in cell no.   20 the number of inmates had been between six and seven, and in cell no.   36 between sixteen and twenty-two people had been detained with him. 48.     The lighting in the cells was constantly switched on. There was one window in each cell, but it did not permit much access to fresh air, as the ventilation system did not comply with the accepted standards. Water was   available from 6.30 a.m. to 9 a.m., from 12 noon to 3 p.m., and from 6   p.m. to 10 p.m. The toilet was separated from the living area of the cells by a 1-metre-high partition, but it offered no privacy. The cells were infested with insects. The administration took no measures to exterminate them. The inmates were allowed a one-hour walk per day. The exercise area did not have any sports equipment. The food was of a poor quality. There were no refrigerators in the cells. On several occasions inmates suffering from tuberculosis and AIDS were placed in the same cells as non-infected inmates. II.     RELEVANT DOMESTIC LAW A.     Conditions of pre-trial detention 49.     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 standards established by the Government of the Russian Federation. Under section   23, detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. B.     Pre-trial detention 1.     Grounds for ordering detention on remand 50.     Article 97 of the Code of Criminal Procedure (CCrP) provides that an investigator or a court may order a preventive measure, for instance detention pending investigation or trial, if there were sufficient grounds to consider that the defendant might abscond, continue his or her criminal activity or threaten a witness or otherwise obstruct the proceedings. They must also take into account the gravity of the charge, information on the defendant’s character, his or her profession, age, health condition, family status and other circumstances (Article 99 of the CCrP). Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1of the CCrP). 2.     Review of pre-trial detention 51.     An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention (Article 108 §   10 of the CCrP). A statement of appeal should be submitted to the court at first level of jurisdiction (Article 355 § 1 of the CCrP). The CCrP contains no time-limit during which the court at first level of jurisdiction should send the statement of appeal and the case file to the appeal court. The appeal court must decide the appeal within three days after its receipt (Article   108 §   10 of the CCrP). C.     Remedies in respect of a violation of the right to trial within a reasonable time 52 .     Federal Law No. 68-ФЗ of 30 April 2010 (in force as of 4   May 2010) provides that in the case of a violation of the right to a trial within a reasonable time, the party concerned is entitled to seek compensation in respect of non-pecuniary damage. Federal Law № 69-ФЗ (enacted on the same date) introduced a number of corresponding changes to the Russian legislation. 53 .     Section 6.2 of Federal Law No. 68-ФЗ provided that parties who had an application pending before the European Court of Human Rights concerning a violation of their right to a trial within a reasonable time, had six months from the date of entry into force of the Law to lodge their claim for compensation with the domestic courts. THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 54.     The applicant complained that he had been detained in appalling conditions pending the criminal proceedings against him in contravention 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.” The applicant also claimed that he did not have at his disposal an effective remedy in respect of the conditions of his pre-trial detention. He relied on Article 13 of the Convention, which, in so far as relevant, provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...” A.     Admissibility 1.     Compliance with the six months’ rule 55.     Regard being had to the differences in the material conditions of the applicant’s detention in the temporary detention centre from 16 to 18   November 2004 and the remand prison from 19   November 2004 to 15   May 2008, which fact is not disputed by the parties, the Court does not find that those two periods in question constituted a “continuing situation” requiring a global assessment ( see Pavlenko v. Russia, no.   42371/02, §   73, 1   April 2010, and Maltabar and Maltabar v. Russia, no.   6954/02, §   83, 29   January 2009). The Court further notes that the complaint in respect of the applicant’s detention in the temporary detention centre, which lasted from 16 to 18   November 2004, was lodged only on 9   June 2007, that is almost two-and-a-half years after the end of the period complained of. The Court also takes into account the applicant’s contention that he had not had an effective domestic remedy against the alleged violation and the fact that he had not brought his grievances to the attention of any domestic authority. In such circumstances, in the Court’s view, it was incumbent on the applicant to raise the complaint within the six months from the end-date of the period complained of. By having failed to do so, he has not complied with the six months’ rule in respect of his complaint about the conditions of detention in the temporary detention centre from 16 to 18   November 2004 and it must be rejected in accordance with Article   35   §§   1 and 4 of the Convention. 56.     The Court further notes that, by lodging the complaint on 9   June 2007, the applicant has complied with the six months’ rule in respect of his grievances about the conditions of his detention in remand prison no.   IZ ‑ 71/1 in Tula from 19   November 2004 to 15   May 2008. 2.     Exhaustion of domestic remedies 57 .     As regards the conditions of the applicant’s detention in the remand prison from 19   November 2004 to 15   May 2008, the Government submitted that his complaint should be dismissed for failure to exhaust effective domestic remedies. They asserted that it had been open to the applicant to bring a civil action for damages or restitution. They relied on the following examples of domestic case-law. On 19   July 2007 the Novgorod City Court of the Novgorod Region had awarded 45,000 Russian roubles (RUB) to D. in respect of non-pecuniary damage on account of the domestic authorities’ failure to ensure him with adequate conditions of detention between 3   November 2004 and 5   July 2005. On 26   March 2007 the Tsentralniy District Court of Kaliningrad had granted R.’s claim for compensation in respect of non-pecuniary damage on account of the prison administration’s failure to provide him with adequate medical assistance. On 5   August 2009 the Astrakhan Regional Court had found credible A.’s allegations concerning the conditions of his detention in a remand prison and awarded him non-pecuniary damages in the amount of RUB   4,700. 58.     The applicant claimed that he had not complained about the conditions of his detention for fear of reprisal on the part of the administration of the remand prison. It was also his view that any complaint he might have made about overcrowding in the remand prison would have been to no avail. 59.     The Court considers that the issue of non-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 in respect of his allegations about the inhuman and degrading conditions of his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention. 3.     Conclusion 60.     The Court further notes that the complaints under Articles 3 and 13 of the Convention, in so far as they concern the period from 19   November 2004 to 15   May 2008, are not manifestly ill-founded within the meaning of Article   35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Article 13 of the Convention (a)     The parties’ submissions 61.     The Government reiterated their argument put forward in support of their assertion that the applicant had failed to exhaust the effective domestic remedies concerning the complaint under Article   3 of the Convention (see paragraph 57 above). 62.     The applicant maintained his complaint. (b)     The Court’s assessment 63.     In the case of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 93-119, 10 January 2012) 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 was not 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. 64.     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. 2.     Article 3 of the Convention (a)     The parties’ submissions 65.     Relying on extracts from the remand prison population register and certificates issued by its administration in August 2010, the Government asserted that the conditions of the applicant’s detention in remand prison no.   IZ-71/1 in Tula had been compatible with the standards set forth in Article   3 of the Convention. They admitted that the personal space afforded him during the period in question had been below the statutory minimum. Nevertheless, at all times the applicant had had his own individual sleeping place. Inmates had not been confined to their cells. They had spent most of their time out of their cells, for example when meeting with their lawyers and receiving visits from their relatives, or when taking exercise outdoors or participating in investigative activities. 66.     The applicant submitted that for three and a half years he had been detained in degrading and inhuman conditions which had caused him mental and physical suffering. (b)     The Court’s assessment 67.     For an overview of the general principles, see the Court’s judgment in the case of Ananyev and Others (cited above, §§   139-159). 68.     Turning to the circumstances of the present case, the Court observes that the parties disagreed as to most of the aspects of the conditions of the applicant’s detention in remand prison no.   IZ-71/1 in Tula from 19   November 2004 to 15   May 2008. However, there is no need for the Court to establish the veracity of each and every allegation, because it can find a violation of Article 3 on the basis of the facts presented to it by the applicant which the respondent Government did not refute. 69.     In this connection the Court takes into account the Government’s admission that during the period in question in remand prison no.   71/1 in Tula, the personal space afforded to each inmate was below the statutory minimum of 4 square metres. 70.     According to extracts from the remand prison population register submitted by the Government, the applicant was afforded no more than 3   square metres of personal space on average. Sometimes he had as little as 1.63 square metres. As a result of such overcrowding, the applicant’s conditions of detention did not meet the minimum standard as laid down in the Court’s case-law (see, among many other authorities, Ananyev and Others , cited above, §§   143-49). This fact alone is sufficient for the Court to find that the problem of overcrowding had not been alleviated by the authorities in the present case. The Court does not lose sight of the fact that on certain days, the number of inmates detained with the applicant decreased and the personal space afforded to them exceeded 3 square metres. In the circumstances of the case, however, the Court does not consider that such occasional fluctuations in the remand prison population significantly affected the applicant’s situation as a whole. 71.     Apart from an hour’s daily exercise, the applicant was confined to his cell for the rest of the time. In the Court’s view, his out of cell activity, namely occasional meetings with his lawyer, visits from his family, or fifteen-minute weekly showers, did not significantly alter the conditions of his detention. 72.     The Court therefore concludes that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention. In view of the Court’s findings under Article 13 of the Convention, the Government’s argument concerning the non-exhaustion of domestic remedies should be dismissed. 73.     In the circumstances, the Court concludes that there has been a violation of Article 3 of the Convention. 74.     In view of the above, the Court does not consider it necessary to examine the remainder of the parties’ submissions concerning other aspects of the conditions of the applicant’s detention in remand prison no.   71/1 in Tula. II.     ALLEGED VIOLATION OF ARTICLE 5   §   3 OF THE CONVENTION 75.     The applicant complained that his pre-trial detention had been unreasonably lengthy. He relied on Article 5   §   3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 76.     The Government contested that argument. They submitted that the applicant’s pre-trial detention had been in compliance with Article   5   §   3 of the Convention. Firstly, the applicant had been remanded in custody on reasonable suspicion of having committed a serious criminal offence. Secondly, between 2004 and 2005 a number of witnesses had complained to the investigator that the applicant had threatened them while at liberty. Witness F. had disappeared before the court hearing of 4   October 2006 and his whereabouts had been unknown until the appeal hearing. In the Government’s view, the domestic courts’ findings as regards the risk that the applicant might abscond, put pressure on witnesses, or otherwise interfere with the administration of justice had been fully substantiated. The applicant’s pre-trial detention had been based on sufficient and relevant reasons. 77.     The applicant maintained his complaint. He claimed that the investigator had encouraged the witnesses to complain about him, but their complaints had not been based on fact, which had been confirmed by the witnesses themselves during their examination in court. A.     Admissibility 78.     The Court notes that this 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 (a)     General principles 79.     The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000 ‑ XI). 80.     The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000 ‑ IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria , no.   38822/97, §   66, ECHR 2003 ‑ I (extracts)). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance for trial (see Jabłoński v. Poland , no.   33492/96, §   83, 21 December 2000). 81.     The responsibility falls in the first place on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the public interest which justifies a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, McKay v.   the United Kingdom [GC], no. 543/03, § 43, ECHR 2006 ‑ X). (b)     Application of these principles to the present case 82.     The applicant was arrested on 16   November 2004 and convicted by the trial court on 28   February 2008 (see paragraphs 6, 33 and 36 above). Thus, the period   to be taken into consideration lasted approximately three years and three-and-a-half months. 83.     The Court accepts that the reasonable suspicion of the applicant having committed the offences he had been charged with, being based on cogent evidence, persisted throughout the trial leading to his conviction. It remains to be established whether the courts gave “relevant” and “sufficient” grounds to justify remanding the applicant in custody and whether they displayed “special diligence” in their conduct of the proceedings. 84.     The inordinate length of the applicant’s pre-trial detention – three years and three-and-a-half months – is a matter of concern for the Court. It considers that the Russian authorities were required to put forward weighty reasons for keeping the applicant in pre-trial detention for such a long time. 85.     When extending the applicant’s pre-trial detention, the domestic courts referred to the gravity of the charges against him. In this connection they noted that he might abscond, continue to commit crimes or intimidate witnesses. 86.     In this connection the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the seriousness of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v.   France , 26 June 1991, § 51, Series A no. 207; Panchenko v. Russia , no.   45100/98, § 102, 8 February 2005; Goral v. Poland , no. 38654/97, §   68, 30 October 2003; and Ilijkov v. Bulgaria , no. 33977/96, § 81, 26 July 2001). 87.     As regards the existence of a risk of absconding, the Court reiterates that such a risk cannot be gauged solely on the basis of the severity of the sentenc