CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 juin 2014

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RUSSIA   (Application no. 33761/05)             JUDGMENT     STRASBOURG   5 June 2014       FINAL   05/09/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tereshchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Khanlar Hajiyev,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 13 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 33761/05) 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 Mr Anatoliy Nikolayevich Tereshchenko (“the applicant”) on 28 July 2005. 2.     The applicant, who had been granted legal aid, was represented by Mr   P.   Finogenov, 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.     The applicant alleged, in particular, that he had been kept in appalling conditions during his detention in 2003-05 and had had no effective remedies in this respect; that his family visits had been unjustifiably restricted while held in a detention centre; that a domestic court had failed to issue a decision on the issue of early release; and that the staff of the detention facilities had not dispatched his letters to the Court. He cited Articles 3, 6, 8, 13 and 34 of the Convention. 4.     On 5 June 2009 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1964 and is serving a prison sentence in the Voronezh Region. A.     Criminal proceedings against the applicant 6.     On 19 September 2002 a search of the applicant’s flat was carried out. He was then charged with drug trafficking. The applicant was kept in police custody until 21 September 2002, when he was released on undertakings of good behaviour and to not leave town. 7 .     In separate proceedings, on 19 September 2003 the applicant was arrested on suspicion of causing bodily harm to another person. On 21   September 2003 he admitted the charge, allegedly under duress. According to the applicant, lawyer V., assigned to represent him, was not present at the interview and signed the record later on. However, there was no mention of counsel’s name in the list of visitors in the detention centre. On 23   September 2003 Judge M. of the Talovskiy District Court, the Voronezh Region (“the District Court”) authorised the applicant’s continued detention and stated that he “had indeed committed a very serious offence”. The applicant was charged with causing bodily harm resulting in the victim’s death. On the same date, the police took him to a hospital and required him to undergo a blood test. 8.     The applicant confirmed his earlier confession in V.’s presence during an on-the-spot interview, which was recorded on video. On an unspecified date, the applicant terminated V.’s representation of him. A new lawyer, B., was appointed for the trial. 9 .     On 27 November 2003 Judge L. of the District Court convicted the applicant of drug trafficking.   In February 2004 the District Court issued a decision admitting the applicant’s mother, K., as the applicant’s lay defender in the appeal proceedings concerning the drug-trafficking conviction.   On 29 March 2004 the Voronezh Regional Court (“the Regional Court”) quashed the judgment of 27 November 2003 and ordered a retrial. 10.     By a judgment of 22 November 2004, the District Court convicted the applicant of causing bodily harm resulting in the victim’s death. However, on 1 March 2005 the Regional Court quashed this judgment, considering that the trial court had wrongly allowed the reading out of a pre-trial witness statement, despite the defence’s objection and in the absence of the applicant. Thus, the appeal court ordered a retrial and that the applicant be held in custody pending it. 11.     On 23 March 2005 the District Court extended the applicant’s detention, referring to the gravity of the charges against him and the risk that he would continue criminal activity, if at large. 12.     In April 2005 the Regional Bar Association decided on a complaint brought by the applicant and imposed a disciplinary penalty on V., the applicant’s former lawyer, apparently, in relation to the drug-related case. 13 .     On 26 April 2005 the District Court returned the case about drug trafficking to the prosecutor. On 29 April 2005 the prosecutor joined the criminal cases against the applicant. On 30   April 2005 the investigator dismissed a number of motions lodged by the defence. In particular, the investigator stated that K. could no longer act as the applicant’s lay defender, since the decision to admit her to the proceedings issued in February 2004 had concerned only the appeal proceedings. 14.     On 3   May 2005 the joined cases were submitted for trial before the District Court. 15 .     Hearings were held on 8 July and 21 July 2005. On the latter date Judge M. stripped K. of her lay-defender status in the criminal proceedings against her son, because she had been interviewed as a witness in the bodily harm case. 16.     Subsequently, the case was assigned to a trial panel of three judges, including Judge M. as the presiding judge. 17 .     In the meantime, the applicant sought the withdrawal of Judge M. from the case, arguing bias on account of, inter alia , the judge’s statement in the detention order of 23 September 2003 (see paragraph 7 above) and his failure to ensure decent conditions of detention pending retrial or to issue permission for a visit from the applicant’s mother. The judge refused to withdraw from the case, stating that the trial court was not competent to deal with the issue of conditions of detention and that the trial court’s competence as regards visits was limited under Article   395 of the Code of Criminal Procedure to the period following delivery of the trial judgment. While admitting that the remark in the detention order was “unfortunate”, the judge stated it did not contain any information to the effect that he had an “interest in the outcome of the criminal case”. The Regional Court upheld the judge’s refusals to withdraw. 18 .     In reply to a renewed challenge by the applicant, on 1 August   2005 the matter was submitted to the remaining two judges on the trial panel. They considered that there were no reasons for Judge M. to withdraw from or to be removed from the criminal case against the applicant. In particular, they stated that the Custody Act required “compelling reasons” for refusing a visit by a next-of-kin to a detainee. They concluded, however, that there was no evidence that any such visit had been refused without valid reason in the applicant’s case. 19.     On 7 September 2005 the District Court discontinued the case against the applicant on charges of drug trafficking, because the prosecutor had dropped the charges. 20.     As to the remaining charges of causing bodily harm, the trial panel noted the defence’s challenge to the expert report concerning the victim’s injuries and granted its request for another expert report. 21.     On 24 January 2006 the District Court convicted the applicant of causing bodily harm resulting in the victim’s death and sentenced him to eight years’ imprisonment. The court relied on several witness statements, the applicant’s pre-trial confession and his on-the-spot interview. 22.     On 20 April 2006 the Regional Court upheld the conviction and sentence. 23.     In or around October 2006 the applicant sought statutory compensation payable by the State to individuals who have been acquitted of criminal offences or in respect of whom the charges have been dropped. On 3 April 2007 the District Court granted the applicant’s claims in part as regards pecuniary and non-pecuniary damage. On 17 July 2007 the Regional Court ordered a retrial in respect of the pecuniary claims. The award in respect of the non-pecuniary claim became final. On 10 April   2008 the District Court granted the applicant’s pecuniary claim in part. On 3   July 2008 the Regional Court, considering that the applicant’s presence at the appeal hearing was not necessary, upheld the judgment. 24.     In the meantime, the applicant sought supervisory review of the above judgment, challenging the factual and legal findings made by the courts and their refusal to confirm his right to compensation on account of his prosecution on drug-trafficking charges.   Having heard the applicant, on 13   February 2008 the Presidium of the Regional Court amended the judgments of 24 January and 20 April 2006 recognising his right to compensation. The court rejected the applicant’s remaining complaints as unfounded. He received a copy of the supervisory-review ruling on 19   February 2008. B.     Early release 25.     On 29 December 2008 the applicant applied for early release from prison. In his letter, which was sent to the Paninskiy District Court of the Voronezh Region, he asked that the necessary supporting documents be requested by the court from the prison administration. It appears that this letter reached the District Court on 10   February 2009. By letter dated 11   February 2009, a judge of the District Court informed the applicant of the refusal to examine the application. The letter read as follows: “Hereby I return your application for early release as it requires amendment. Certain necessary documents were not enclosed with it, namely the prison’s reports on your personality and disciplinary penalties, as well as certificates relating to employment, your medical and psychiatric conditions ... No court decision [on your application] may be issued in the absence of these documents.” The applicant did not appeal, as he was not provided with a copy of any formal decision. 26.     Instead, the applicant resubmitted his application to the District Court, this time with some supporting documents. During the hearing, which took place before another District Court judge, the prison administration expressed their disagreement with his application, considering it to be premature. By a judgment of 25   March 2009 that District Court judge examined the applicant’s request. While acknowledging that the applicant had already served two-third of the sentence, the court rejected the application, referring inter alia to the fact that the applicant had received several penalties for violations of the internal prison regulations, including one placement in a punishment cell. The applicant appealed. On 23 June 2009 the Regional Court upheld the judgment. C.     Other proceedings 27.     Between 2002 and 2009 the applicant lodged numerous complaints, initiated proceedings against lawyer V. and various public officials accusing them of criminal offences, contesting criminal proceedings against him or complaining about the conditions of his detention (see also paragraphs 37 ‑ 39 below). 28.     In November 2002 the applicant lodged a complaint, alleging that during the search of his house in September 2002 one of the officers had taken him into the bedroom and had pushed him against the wall.   On 30   November 2002 an investigator refused to institute criminal proceedings on account of the alleged ill-treatment. In 2003 the matter was examined and a new refusal was issued by a deputy prosecutor on 28 May 2003. By a judgment of 2 September 2005, the District Court confirmed this refusal to prosecute. On 3 November 2005 the Voronezh Regional Court upheld that judgment. D.     Conditions of detention 1.     Talovskiy Temporary Detention Centre 29.     The applicant was detained in Talovskiy Temporary Detention Centre (“TDC”), which was attached to Talovskiy police station, on numerous occasions between September 2003 and 2005 for periods at times in excess of one month. The applicant was also held in the TDC on several occasions between 2006 and 2008. 30.     According to the applicant, although he was alone in the cell, no arrangements were made for a proper bed and bedding. Neither were there any facilities for taking a bath or shower or for outdoor exercise. He was given one meal a day. The walls were rendered with shuba , a coarse type of concrete, designed to prevent detainees from leaning on the walls. The cell windows were covered with metal shutters blocking access to fresh air and natural light. 31.     In late 2003 the applicant had bronchitis and allegedly failed to receive appropriate treatment.     In December 2003 he attempted suicide and self-harmed, being unable to stand the appalling conditions of detention and the duration of his placement in the TDC. 32.     The applicant submitted that the conditions of detention in the TDC improved between 2006 and 2008, when he was allowed to take a shower and daily outdoor exercise and was provided with two meals a day. 2.     Voronezh Remand Centre (a)     The applicant’s account 33 .     Between October 2003 and July 2005 the applicant was also kept in Voronezh Remand Centre no.   36/1. According to him, at times, twenty-three detainees were held in a cell with twelve beds; thus the cell measurements were below the required international and even national standards. 34 .     In his observations before the Court, the applicant further argued that he had been kept in a cell measuring 25 sq. m. together with eleven other detainees. On average, the cell accommodated sixteen or seventeen detainees although it only had six bunk beds. At times, it accommodated some 20-23 detainees. The applicant enclosed diagrams of cells 141, 156, 171, 177 and 189, which, according to him, measured 27.5 sq. m. and had twelve beds each.     He also provided several written statements from individuals who had been kept in the remand centre for varying periods between 2003 and 2006, at times in the same cell(s) as the applicant. For instance,   T. submitted that on some occasions between twenty and twenty-seven detainees had been kept in cells measuring about 30   sq. m. with twelve beds. Another detainee stated that cell no. 171 had twelve beds but accommodated, sometimes, twenty-four   detainees; they had to take turns to sleep during the day or at night. 35 .     Drawing on the statements from other detainees, the applicant’s lawyer argued in the observations that the cells had lacked mandatory ventilation although many detainees smoked, and, at times, the temperature there went up to 50 C. The toilet in the cells was separated in the main area by a metal bar of 1.5 m in height, which did not provide sufficient privacy. Sometimes, there was no water supply in the drainage system, so the use of the toilet had to be limited in order to reduce unpleasant smells. The cells were infested with flies, cockroaches and bugs. (b)     The Government’s account 36.     In reply to the applicant’s initial complaint relating to the cell sizes and insufficiency of beds, the respondent Government submitted a certificate signed on 12   August 2009 by the acting chief officer of the remand centre. This certificate listed the cells in which the applicant had been kept for varying periods since October 2003 (cells nos. 1, 8, 44, 86, 90, 137, 141, 156, 171 and 188). 3.     The applicant’s complaints about the conditions of his detention 37 .     The applicant unsuccessfully complained to various public authorities about the conditions of his detention in the Talovskiy TDC. These complaints were forwarded to the Voronezh Region Prosecutor’s Office for examination. By letters of 16 March, 27 April and 26 August 2004, and 23   October 2006 the Prosecutor’s Office rejected his complaints as unfounded. It indicated that the applicant’s repeated placements in the temporary detention centre were due to logistical difficulties with transferring him between Talovskiy TDC and the Voronezh Remand Centre, which were a considerable distance apart. On 28   March and 12 September 2005 as well as on 29   September 2006 the Talovskiy District Prosecutor’s Office rejected the applicant’s renewed complaints as unsubstantiated. 38.     By letters of 2 and 12 September 2005, the President of the District Court declined jurisdiction to deal with the applicant’s complaints about his repeated and prolonged detention in the Talovskiy TDC, including his complaints about the physical conditions of detention there. 39 .     By letter of 1 September 2008, the Regional Prosecutor’s Office informed the applicant that his earlier complaints had been examined by the district prosecutor, who had issued decisions dated 11 October 2006, 25   June 2007 and 28 January 2008 confirming unspecified violations in relation to the conditions of detention in the TDC. 4.     Conditions of detention in the post-conviction prison 40.     The applicant is now detained in prison no.   3, located in Pereleshino in the Voronezh Region. According to him, the living area of the prison measures 64 square metres and houses 38 detainees; the artificial lights in the dormitory are insufficient; the food is bad. E.     Limitations on family visits 41.     Between January 2004 and March 2005 the applicant received visits in the remand centre from his mother, K. 42 .     Around April 2005 the applicant started to complain that he was no longer receiving visits from his mother. According to the Government, she did not come to the remand centre and did not request any visits at that time; nor did she lodge any complaints of visits being refused. 43 .     By letter of 1 April 2005, Judge M. of the District Court stated that the Code of Criminal Procedure did not require a court decision in response to the applicant’s complaint concerning family visits. Section 18 of the Custody Act did not necessitate a request for such a visit to be granted; the decision on whether to authorise such a visit remained within the discretion of the authority dealing with the criminal case. Article 395 of the Code of Criminal Procedure provided that visits could be authorised following delivery of the trial judgment and before its enforcement. 44 .     By letter of 7 April 2005 the President of the District Court dismissed the applicant’s renewed complaint. He indicated that family visits could be allowed under Article 395 of the Code of Criminal Procedure after pronouncement of a trial judgment. 45 .     The applicant also complained to the Regional Prosecutor’s Office that a police officer (apparently, the officer in charge of Talovskiy TDC) was refusing to allow visits from his mother. This complaint was forwarded to the Talovskiy District Prosecutor’s Office for examination. In July   2005 the district prosecutor dismissed the complaint from the applicant, stating that while K. had been accepted in February 2004 as a lay defender in the appeal proceedings concerning the drug-trafficking case against the applicant, this case had been joined to the second case pending before the District Court. The prosecutor noted that the District Court had not yet issued any decision accepting K. as a lay defender in the joined cases. 46 .     The applicant complained to the Supreme Court of Russia about the refusal to allow visits from his mother. This complaint was forwarded to the District Court. By letter of 29 July 2005, the President of the District Court stated as follows: “I consider that section 18 of the Custody Act does not require the court “dealing with the criminal case” to grant applications for the authorisation of visits. Such visits may be authorised depending on the circumstances relating to the criminal proceedings. Following the quashing of the judgments [in respect of the applicant] on appeal and the decision to order a retrial, the retrial has not started yet. Article 395 of the Code of Criminal Procedure requires the court to grant visits from next-of-kin following delivery of the trial judgment ... K. had been accepted as [the applicant’s] lay defender, in addition to counsel, and was granted permission to pay visits to [the applicant] ... Section 18 does not require the court to issue any additional authorisations for visits ...” 47.     The applicant also complained to the Regional Prosecutor’s Office in June 2005. This complaint was forwarded for examination to the Talovksiy District Prosecutor’s Office. By letter of 3 August 2005 the district prosecutor dismissed his complaint. 48 .     The applicant tried to lodge an appeal before the Regional Court in relation to the above letter of 29 July 2005. By letter of 12 September   2005, Judge M. of the District Court refused to process the applicant’s appeal against the letter. The judge indicated that a letter was not amenable to appeal. 49 .     The applicant submitted to the Court a statement made by his mother. She affirmed that on several occasions during the year 2004 she had been afforded the opportunity to talk for a short time with the applicant through a metal partition, because there was no meeting room in Talovksiy TDC. Between March and August 2005 she had lodged six requests before Judge M. of the District Court seeking authorisation for a meeting with the applicant in the TDC. In her requests, she referred to her next-of-kin status rather than her position as a lay defender in the criminal proceedings. The judge had dismissed her requests orally without issuing any formal decision which would be amenable to appeal. Her similar requests to the President of the District Court were also dismissed. She had presented the decision of 16   February 2004 to the chief officer of the Talovskiy police station but he had demanded a recent court order. Apparently, her ensuing complaints against the officers had not been processed by the District Court. Between February 2004 and July 2005 no permission had been granted for her to visit as a lay defender (which would have had the benefit of visits not being limited in frequency and duration, see paragraph 56 below). F.     Correspondence with the Court 50.     In September 2005 the Court received the applicant’s application form dispatched, by registered mail, on 30 July 2005 from Remand Centre no.   36/1 (as indicated on the envelope).   In March 2006 the Court received the applicant’s additional application form, with enclosures, sent by registered mail on 4   February 2006 from the same remand centre (as indicated on the envelope).   In August 2006 the Court received two further packages, with numerous enclosures, from the applicant. According to the applicant, the above correspondence was, in fact, dispatched by his mother, K. 51.     The Court also received the applicant’s letter dated 15   December 2006, which he submitted had been sent by his mother, in which he complained that prison no.   3 had not dispatched his letters of 27   June, 2   August and 8 September 2006. 52.     Subsequently, the applicant also complained to the Court that the remand centre had not dispatched his letter dated 27 April 2006. He submitted a copy of a note, apparently written by a remand centre officer, stating that his letter had been dispatched. The Court did not receive this letter. 53.     The applicant claimed that on 26 December 2006 the staff of the prison refused to dispatch a letter dated 15 December 2006 to the Court. He was then transferred to the TDC in Talovaya. According to the applicant, his mother then tried to dispatch the letter from there, but the staff of the postal office refused to dispatch it. 54.     On 16 May 2008 the Registry of the Court received the applicant’s letter dated 28   December 2006, apparently dispatched by the applicant’s mother. In that letter the applicant alleged that on 26 December 2006 the administration of prison no.   3 had refused to dispatch his letter of 15   December 2006. 55.     The Registry also received the applicant’s letters of 31   March, 10   October, 15, 21 and 29   December 2008, and several letters in 2009 from prison no.   3. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Visits to detainees 1.     Visits from counsel 56 .     Pending investigation and trial a detainee has the right to receive visits from his counsel without any limitation of frequency or duration (Article 47 of the Code of Criminal Procedure, “the CCrP”). A court may authorise a person’s next-of-kin to act as counsel, in addition to a lawyer (Article 49 of the CCrP). In 2008 the Russian Constitutional Court held that the combined reading of Articles 49, 51, 52 and 72 of the CCrP implied that a person admitted as counsel in a criminal case continues to have his or her procedural rights and obligations during subsequent proceedings, at least until a court decides to remove counsel or accepts the defendant’s decision in this vein (decisions nos. 453-O-O and 871-O-O of 24 June and 25   December 2008; see also decision no.   803-O-O of 28 May 2009). 2.     Other visits pending investigation and trial 57.     Section 18 of the Custody Act (Federal Law no. 103-FZ of 15   July 1995) provided that meetings with counsel were not limited in their number and duration, except when otherwise prescribed by the CCrP. Counsel, who is not an advocate, should present a court order and his identity document. The same section also provided that the officer or authority dealing with the criminal case could authorise a suspect or accused person to receive up to two visits (of up to three hours each) per month from their next-of-kin or other individuals. 58.     In its decision no. 159-O of 1 July 1998, the Constitutional Court held that section 18 was compatible with the Constitution. The limitations relating to the number of visits and their length, as well as regarding practical arrangements for them, were an inevitable consequence of detention pending investigation or trial. Section 18 should not be interpreted as authorising an investigator to refuse a visit without there being a compelling reason relating to the protection of rights of others or the interests of justice in a criminal case. The investigator’s decision should provide reasons and may be subject to judicial review. The reviewing court should assess all relevant circumstances and the sufficiency of reasons for refusing a visit. 59.     In its decision no. 133-O of 7 February 2013, the Constitutional Court re-examined the constitutionality of section 18, having regard, inter alia , to the Court’s findings in Vlasov v. Russia , no. 78146/01, 12 June   2008 (see also paragraph 135 below). The Constitutional Court held that section 18 contained precise limitations concerning the frequency and length of visits and provided for an authorisation procedure for such visits. The existence of those limitations was related to the specific nature of criminal proceedings and the aims pursued by preventive measures such as remand in custody pending criminal proceedings. Indeed, there was a difference vis-à-vis detention following conviction, during which, under certain conditions, there is a right to long visits. The limitation relating to the length of visits applies during remand in custody pending investigation, which, in itself, should not go beyond a reasonable time. That limitation also applies to detention pending trial, which may be extended, for no longer than three months each time, only in serious and particularly serious cases. The above conditions constituted guarantees against disproportionate interference with the detainee’s right to communicate with his or her relatives. 60.     Article 395 of the CCrP provides that following pronouncement of the trial judgment and before its enforcement, the trial judge or President of the court must grant any request from the next-of-kin of the convicted person for a visit. B.     Early release 1.     Criminal Code and Code of Criminal Procedure 61 .     Article 79 § 1 of the Criminal Code provides that a convicted person serving a sentence of imprisonment may be granted ( подлежит ) conditional early release, provided that a court has accepted that the full period of detention is no longer necessary for the convict’s punishment and rehabilitation. Article 79 of the Code also reads as follows: “2.     The court may also impose certain obligations on the convict in a decision to grant early release ... 3.     Early release may only be granted after serving at least (a)     one-third of the sentence for offences of minor and medium severity; (b) one-half of the sentence for serious offences; and (c)   two-thirds for particularly serious offences ... 7. A court may revoke early release if, during the period at liberty, the convict commits a breach of the public order ... , seriously violates the obligations imposed on him or her in the decision to grant early release, ... or commits a criminal offence.” 62 .     A court decision concerning early release can be appealed to a higher court (Article 401 of the CCrP). 2.     Ruling no.   8 of the Supreme Court of Russia 63 .     On 21 April 2009 the Plenary session of the Supreme Court of Russia issued Ruling no. 8, providing clarifications to the lower courts on the application of Article 79 of the Criminal Code concerning early release and Article 80 of this Code concerning commutation to a lighter sentence. It was stated therein that the examination of cases falling within the scope of those Articles required an individualised approach, with due regard to the existence or absence of any continuing need of detention for punishment and rehabilitation of the convicted person, his or her personality, and attitude displayed towards labour or education during the prison term. The mere fact that the convict had already served the required part of the prison term would not suffice for granting early release under Article 79. Courts should not refuse early release on grounds which are not listed in the law (such as the existence of an earlier conviction, the lenient nature of the sentence or denial of guilt by the convict). 64.     A court must examine an application under Article 79 of the Criminal Code even if the convict or his representative has not submitted the documents normally required in the case of a similar application made by the prison. In such cases, the court must forward the application to the prison and require them to submit the relevant documents. The court may also provide assistance to the convict in collecting other evidence which cannot be submitted by the prison. C.     Convicts’ correspondence 65 .     Under the regulations governing detention facilities adopted by the Federal Ministry of Justice on 3 November 2005, detainees are allowed to dispatch correspondence at their own expense. They must do so through the detention facility (points 15 and 49). Detainees are also allowed to dispatch, again only through the detention facility, correspondence to public authorities (complaints, motions, suggestions), which is registered in a correspondence logbook (point 61). 66 .     As follows from Instruction no. 94-дсп for special units in remand centres (adopted by the Federal Ministry of Justice on 23 June 2005 for internal use by detention facilities), detainees’ correspondence should normally be dispatched by ordinary mail. By a judgment of 6 April   2010, the Supreme Court of Russia upheld this provision and confirmed that the decision not to publish the Instruction had been lawful. It is unclear whether the above Instruction applied to prisons ( исправительные колонии ). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 67.     The applicant complained under Article 3 of the Convention that he had been kept in appalling conditions between 2003 and 2005 in Talovskiy Temporary Detention Centre and Voronezh Remand Centre no. 36/1. 68.     Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 69.     The Government argued that, while the applicant had complied with the six-month rule, he had failed to exhaust domestic remedies. 70.     The Court previously dismissed a similar argument as unsubstantiated (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 70 and 100-119, 10 January 2012). The Court finds no reason to reach a different conclusion in the present case, as regards both the Talovskiy TDC and the Voronezh Remand Centre. 71.     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 1.     Talovskiy Temporary Detention Centre 72.     The Government acknowledged that the conditions of the applicant’s detention in the temporary detention centre had been unacceptable by Article 3 standards. The Court takes note of the Government’s admission and sees no reason to hold otherwise. Accordingly, the Court concludes that the conditions of the applicant’s detention in the centre amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention and that there has been a violation of this Article. 2.     Voronezh Remand Centre no. 36/1 (a)     The parties’ submissions 73.     The Government stressed that the applicant’s initial complaint before the Court on which they had been asked to comment had related to the cell sizes and cell population, and to the alleged lack of a sufficient number of individual beds in the cells. The Court’s delay in giving notice of the application had deprived the domestic authorities of an opportunity to keep the logbooks describing the relevant conditions, including the cell population on relevant dates. Lastly, the Government stated that the conditions in the remand centre had been acceptable. 74.     The applicant maintained his initial complaint and added further details to the description of the conditions of detention. He argued that the Government had failed to submit any documentary evidence to refute his allegation that the domestic requirement as to cell space (four square metres per detainee) had not been complied with. Like in earlier cases, the Government had referred to the destruction of relevant logbooks while failing to remedy the situation, for instance, by amending the regulations establishing the retention periods for such logbooks. In the absence of any effective domestic remedies, the applicant had had no forum in which to establish the facts of the matter. (b)     The Court’s assessment 75.     The Court observes at the outset that the applicant’s initial complaint, which was raised in 2005, concerned the allegedly cramped conditions and insufficient number of individual beds in the cells of the remand centre (see paragraph 33 above). In his observations of December 2009 in reply to those of the Government, he raised further complaints relating to the physical conditions of detention in the remand centre (see paragraphs 34-35 above). The Court considers that these new aspects of the case fall outside the scope of the case communicated to the respondent Government and will not be taken into consideration in the present case (see, mutatis mutandis , Pavlenko v. Russia , no. 42371/02, § 94, 1   April 2010, and Anton yuk v. Russia , no.   47721/10, §§ 93-94, 1 August 2013). 76.     The Court reiterates that an applicant must provide an elaborate and consistent account of the conditions of his or her detention, mentioning the specific details, for instance the dates of his or her transfer between facilities, which would enable the Court to determine that the complaint is not manifestly ill-founded or inadmissible on any other grounds. Only a credible and reasonably detailed description of the allegedly degrading conditions of detention constitutes a prima facie case of ill-treatment and serves as a basis for giving notice of the complaint to the respondent Government (see Ananyev and Others , cited above, §   122). 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 as to the conditions of detention may give rise to the drawing of inferences as to the validity of the applicant’s allegations (ibid., §   123). 77.     In previous conditions-of-detention cases, the extent of factual disclosure by the Russian Government has been rather limited and the supporting evidence they produced has habitually consisted of a series of certificates issued by the governor of the impugned detention facility after they had been given notice of the complaint. The Court has repeatedly pointed out that such certificates lacked references to the original prison documentation and were apparently based on personal recollections rather than on any objective data and, for that reason, were of little evidentiary value (see, among other authorities, Igor Ivanov v. Russia , no. 34000/02, §   34, 7 June 2007; Belashev v. Russia , no. 28617/03, § 52, 4 December 2008; Veliyev v. Russia , no. 24202/05, § 127, 24 June 2010; and Idalov v.   Russia [GC], no. 5826/03, §§ 99-100, 22 May 2012). 78.     In the present case, no such certificate or similar evidence was adduced. Thus, the Court finds that the Government’s general assertion concerning the adequacy of the conditions of detention lacks substantiation. 79.     The Government also advanced the explanation that the complaint had been communicated to them after a considerable lapse of time and that by then the original prison documentation had been destroyed upon the expiry of the time-limit for its safe-keeping. 80.     The Court reiterates in this connection that the Government must properly account for its failure to submit original records, in particular those concerning the number of inmates detained together with the applicant. The destruction of the relevant documents did not absolve the Government from the obligation to support their factual submissions with appropriate evidence (see Ananyev and Others , cited above, § 125). Moreover, the Court has often found that the Russian authorities did not appear to have acted with due care and diligence in handling prison records because some of them had actually been destroyed after the Government had been put on notice that the Court was dealing with the case (see Novinskiy v. Russia , no.   11982/02, §§ 102-103, 10 February 2009; Gultyayeva v. Russia , no. 67413/01, § 154, 1 April 2010; and Shcherbakov v. Russia , no. 23939/02, § 78, 17   June 2010). In other cases the Government submitted extracts from original prison records, but they were too disparate and far apart in time to present a credible refutation of the applicant’s claim of severe overcrowding at the material time (see Sudarkov v. Russia , no.   3130/03, § 43, 10 July 2008; Kokoshkina v. Russia , no.   2052/08, §§ 32 and 60, 28 May 2009; and Gubin v. Russia , no.   8217/04, § 54, 17 June 2010). 81.     The Government did not enclose with their observations in 2009 any official document relating to the destruction of logbooks. Thus, the Court was not afforded an opportunity to verify their submissions in this respect. These registers could have been an important and reliable piece of evidence but the Government have not accounted for their failure to produce them to the Court.   Moreover, they did not submit any documents relating to the measurements and cell population for the relevant periods of the applicant’s detention in the remand centre. At the same time, it is noted that the respondent Government submitted a certificate signed on 12   August   2009 by the acting chief officer of the remand centre, who was able to list the cells in which the applicant had been kept for certain periods since October 2003 (cells nos. 1, 8, 44, 86, 90, 137, 141, 156, 171 and 188). 82.     Furthermore, the Court notes its findings in relation to the same detention facility in Ivakhnenko v. Russia (no. 12622/04, §§ 28 and 32, 4   April 2013) that the Government did not claim in their observations in that case in 2009 that the registers covering the period between August 2003 and January 2004 (which corresponds to a part of the period of the applicant’s detention in the present case) had been destroyed. Also, in that case the applicant produced a copy of a letter from the regional prosecutor’s office dated 24   October 2005 in response to his complaint about the conditions of his detention, in which the prosecutor acknowledged, in particular, the existing overcrowding in the cells and indicated that he had asked the governor of the remand centre to remedy the breach of the domestic legal requirements concerning the conditions of detention (ibid., §§ 9 and 34). 83.     Having regard to the above, the Court considers the applicant’s allegations concerning the overcrowding of the remand prison to be credible (see paragraph 33 above). In the present case, the Court is ready to accept that the applicant was kept for over a year in cramped conditions, where each detainee was afforded, at times, less than or around 2 sq. m. of cell space, which included the space taken by the cell furniture and amenities. The Court also accepts that, sometimes, the cell population exceeded the actual number of beds in the cell, so that the detainees had to take turns to sleep. The Court considers that this could be a source of tension between detainees and would have generated additional stress and frustration. 84.     The Court has found in many previous cases that where the applicants had less than three square metres of floor space at their disposal, the overcrowding was considered to have been so severe as to justify in itself a finding of a violation of Article 3 (see Lind v. Russia , no. 25664/05, § 59, 6   December 2007; Starokadomskiy v. Russia , no.   42239/02, §   43, 31   July 2008; and Dmitriy Rozhin v. Russia , no. 4265/06, §§ 49 and 50, 23   October 2012). 85.     There has therefore been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention in Voronezh Remand Centre no.   36/1 between 2003 and 2005, which the Court considers to have been inhuman and degrading treatment within the meaning of that provision. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ITS ARTICLE 3 86.     The applicant also argued that he had not had effective remedies for the complaints detailed above, 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.” 87.     The Government submitted that the applicant had had effective remedies at his disposal, including a civil action for compensation. 88.     The applicant maintained his complaint. 89.     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 physical 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 had not had at their disposal an effective domestic remedy for their complaints, in breach of Article 13 of the Convention. 90.     Having examined the Government’s arguments, the Court finds no reason to depart from this conclusion in the present case. Noting that the applicant raised an “arguable” complaint under Article 3 of the Convention, the Court finds that there has been a violation of Article 13 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 91.     The applicant further complained about the refusal to examine his application for early release in February