CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 mars 2010

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Russia (application no. 58939/00) STATEMENTS BY A POLITICIAN ABOUT A PERSON CHARGED WITH RAPE BREACHED THE PRESUMPTION OF INNOCENCE Violation of Article 3 (prohibition of inhuman or degrading treatment) Violation of Article 6 § 2 (presumption of innocence) concerning the politician’s public statements and no violation of Article 6 § 2 concerning the prosecuting authorities’ documents No violation of Article 6 §§ 1 and 3 (d) of the European Convention on Human Rights     Principal facts   The applicant, Anatoliy Kuzmin, is a Russian national who was born in 1964 and lives in Motygino (Russia). In 1998, while he was serving as district prosecutor in Motygino, criminal proceedings were brought against him for the rape of a 17-year-old girl. Shortly after the opening of the proceedings on 22 April 1998, Alexander Lebed, a candidate for election to the post of governor of the Krasnoyarsk region and a well-known public figure (having been, among other things, a general in the Russian army, a member of the State Duma in 1995, a candidate in the 1996 presidential elections and secretary of the National Security Council under President Yeltsin), declared in three television interviews in May 1998 that the applicant was a “criminal” who should have been in the “nick” for some time, promising that the “son of a bitch” would soon be “rotting in jail”. On 17 May 1998 Mr Lebed was elected as regional governor.   On 22 May 1998 Mr Kuzmin was remanded in custody and charged with the rape of a minor, and on 11 June 1998 he was dismissed from the prosecution service. Both the application and the order for his dismissal stated that he had “committed a rape”.   He was admitted to remand prison 24/1 in the city of Krasnoyarsk (“ SIZO -24/1”) and held in solitary confinement – at his request, according to the Government. Following a complaint by Mr Kuzmin about the conditions of his detention, an investigation found that the toilets “[did] not meet elementary sanitary and hygiene requirements”, that there was no ventilation system and that the surface area of the cell was 3.7 sq. m, in breach of the standards prescribed by law. The applicant also complained to the court of first instance about the conditions of his detention in a disciplinary cell, by personal order of the prison governor, and subsequently in a cell on the “special corridor” for prisoners sentenced to death. In a judgment of 20 September 2001 the court held that there had been no justification for placing the applicant in disciplinary cells as the necessity of such measures had not been proved, and also that the law requiring officials of the prosecution service and other law-enforcement authorities to be separated from other prisoners had not been observed. Mr   Kuzmin was awarded 3,000 roubles (approximately 109 euros) for non-pecuniary damage.   In November 1998, after the preliminary investigation had been completed, the indictment was served on the applicant, who maintained that he had not had access to the full version of the document. During the trial, witnesses were examined, including the rape victim’s mother, the police officers who had received her complaint, the investigator dealing with the case, a medical expert and a friend of the victim. The applicant, the public prosecutor and the victim put questions to each of the witnesses.   Mr Kuzmin was convicted in 1999 and released in 2000 after being granted an amnesty.     Complaints, procedure and composition of the Court   Relying on Article 3, the applicant complained about the conditions of his detention from 31   May to 16 December 1998 in SIZO -24/1. He also complained, under Article 6 § 2, that the comments by Mr Lebed and the language used in the application and order for his dismissal had infringed his right to presumption of innocence. Lastly, he alleged under Article 6 §§ 1 and 3 (d) that before the start of the trial he had not received the full bill of indictment with a list of the witnesses to be called.   The application was lodged with the European Court of Human Rights on 24 October 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Anatoly Kovler (Russia), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (the former Yugoslav Republic of Macedonia),   judges , and also Claudia Westerdiek , Section Registrar .     Decision of the Court   Article 3   By placing the applicant in a cubicle measuring 3.7 sq. m, the authorities had not complied with Russian law, which required a minimum cell area of 4 sq. m per prisoner, and even less so with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which advocated a minimum of 7   sq. m. The Court noted that improvements to the cells, in particular the installation of a ventilation system, had been carried out six months after the applicant had left.   Accordingly, having regard to the overcrowded conditions in which Mr Kuzmin was detained, coupled with his solitary confinement and the lack of a ventilation system, water and natural light in his cell, the Court held unanimously that during his detention in SIZO -24/1 he had been subjected to degrading treatment, in breach of Article 3.   Article 6 § 2   Statements by Mr Lebed   The authorities were entitled to inform the public about ongoing criminal investigations, while ensuring the circumspection necessary for the presumption of innocence to be observed and paying particular attention to their choice of words.   Unlike the Government, the Court did not consider that Mr Lebed, a very well-known politician, had expressed his views on television as a private individual. His comments, including a promise to arrest the applicant, could have been construed as confirming his belief that Mr Kuzmin was guilty of the alleged offence. Moreover, several days after the interviews in question, Mr Lebed had been elected governor and the applicant had been arrested and charged with the rape of a minor.   It had been particularly important at that early stage of the proceedings – before the indictment – not to make any public allegations which could have given the impression that certain senior officials believed the applicant to be guilty.   Given the very particular circumstances in which Mr Lebed had made the statements in question, the Court considered that they amounted to declarations by a public official which had served to encourage the public to believe the applicant guilty and prejudged the assessment of the facts by the competent judicial authority.   The Court therefore concluded by four votes to three that there had been a violation of Article 6 § 2 on that account.   Language used in the prosecuting authorities’ documents   Although the assertive tone adopted by the regional prosecutor in the application for Mr   Kuzmin’s dismissal raised some concerns, that document did not contain a finding that the applicant was guilty but instead described a “state of suspicion”.   The terms used – unfortunately without any qualification – in the order for the applicant’s dismissal had to be seen in their specific context; their purpose had not been to declare the applicant guilty but to relieve him of his duties. They had formed part of a reasoned decision, for internal use within the prosecution service, by the Prosecutor General in his capacity as the applicant’s superior and the head of the Russian Federation’s prosecution system, and not by a senior official informing the public about the criminal case in question. The Court therefore held unanimously that there had been no violation of Article 6 § 2 on that account.   Article 6 §§ 1 and 3 (d)   The parties disagreed as to whether the applicant had received the full bill of indictment. However, even if he had received the indictment without a list of the witnesses to be called, there had been nothing to prevent the applicant from seeking to have witnesses called if he thought that their testimony would be decisive. Yet he had not taken any such steps and had not explained why their evidence might be useful.   After three witnesses for the defence had failed to appear at the trial, Mr Kuzmin had not asked the court to order their attendance. In their absence, the judges had relied on the statements which they had given during the investigation and which the applicant had not challenged. With regard to the victim’s sister and the persons present at the scene of the crime, Mr Kuzmin had not asked to have them examined either.   The Court could only presume that he had wished to have certain witnesses examined in order to show that the victim’s mother had been pressured into lodging a complaint and that, after forging certain documents, the authorities had managed to secure his imprisonment for rape. However, those allegations had been examined at the trial and the applicant had had the opportunity to defend his position when confronted with the police officers involved and the investigator dealing with the case. Accordingly, there had been no violation of Article   6   §§ 1 and 3 (d).   ***   As no quantified claims had been submitted within the time allowed, the Court did not make an award to the applicant by way of just satisfaction (Article 41).   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.