In the case of Strelets v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28018/05) 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 a Russian national, Mr Igor Vladimirovich Strelets (“the
applicant”), on 19 July 2005.
The applicant was represented by Ms S. Mazayeva,
a lawyer practising in Volgograd. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the
Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that he had
been subjected to inhuman and degrading treatment by having allegedly been
deprived of food and sleep on the days when he had been transported to the
court-house for trial, that his detention had been unlawful and based on insufficient
grounds, and that its judicial review had not been expeditious.
On 1 July 2010 the above complaints were 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
The applicant was born in 1956 and lives in Moscow.
A. The applicant’s arrest and detention pending
investigation
At the material time the applicant held the post
of Vice President of LLC Volga Aviaexpress Airlines (ООО “Авиакомпания Волга-Авиаэкспресс”).
On 28 July 2003 the applicant left for annual
leave in South Africa, where he stayed until 17 September 2003, following which
he was in the United Kingdom until 23 September 2003 before returning to Russia.
Meanwhile, on 30 July 2003 the Volgograd Regional
Prosecutor’s Office instituted criminal proceedings under Article 159 § 3 (b)
of the Criminal Code for fraud involving a Yak-42 aircraft.
On 24 September 2003 the applicant was placed on
an international wanted list.
On 26 September 2003
Tsentralniy District Court (Volgograd - “Tsentralniy District Court”) ordered the
applicant’s remand in custody on suspicion of fraud. The District Court held as
follows:
“... Following the institution of the criminal proceedings [the
applicant] absconded from Volgograd and the Russian Federation.
In connection with the establishment of [the applicant’s]
whereabouts in South Africa, on 24 September 2003 he was placed on a
wanted list.
... Taking into account the fact that [the applicant] is
charged with a serious offence, [that he] fled from investigation, has actively
obstructed the establishment of the truth in the case, and may continue the
criminal activity, the court considers it necessary to choose a measure of
restraint in the form of placement in custody.”
According to the applicant, until
29 September 2003 he did not know anything about the criminal proceedings
against him. As soon as he knew about them, he went to the investigation
department of the Volgograd Regional Prosecutor’s Office, where he was arrested
pursuant to the court order of 26 September 2003.
The applicant was placed in a temporary
detention facility, where he was kept until 17 October 2003. Throughout
this period the applicant’s family was unaware of his whereabouts. The
applicant was subsequently transferred to IZ-34/1 remand prison (Volgograd).
In the meantime, on 14 October 2003 Volgograd Regional Court upheld the decision of 26 September 2003 on appeal.
On 28 November 2003 and
15 March 2004 Tsentralniy District Court extended the applicant’s pre-trial
detention until 30 March and 30 May 2004 respectively. On both
occasions the court relied on the gravity of the charges against the applicant
and the fact that he had been placed on an international wanted list prior to
his arrest, which gave the court sufficient grounds to believe that if at large
the applicant might obstruct the proceedings. Under these circumstances the
court held that the application of a non-custodial preventive measure was not
possible.
On 9 December 2003 Volgograd Regional Court
upheld the extension order of 28 November 2003 on appeal. The case file
contains no information as to whether the applicant appealed against the extension
order of 15 March 2004.
On 31 May 2004 the applicant’s case file was
remitted to Dzerzhinskiy District Court (Volgograd - “Dzerzhinskiy District
Court”) for examination on the merits.
B. The applicant’s detention pending trial
1. Detention between 30 May and 14 June 2004
On 30 May 2004 the applicant’s
detention ordered by the decision of 15 March 2004 expired. No other
decision was made regarding his detention until 14 June 2004. However, the
applicant remained in detention.
On an unspecified date in 2005 the applicant
sought compensation for unlawful detention between 30 May and 14 June 2004.
On 27 March 2006 Tsentralniy District Court
acknowledged that the applicant’s detention in the above period had been
unlawful and awarded him 5,000 Russian roubles.
The applicant submitted that the above judgment
remained unenforced to date.
2. Detention between 14 June and 26 October 2004
On 14 June 2004 Dzerzhinskiy
District Court fixed a date for a preliminary hearing of the case and held that
the preventive measure applied to the applicant and three other co-defendants
“should remain unchanged”.
3. Detention between 26 October and 30 November 2004
On 26
October 2004 Dzerzhinskiy District Court scheduled the opening day of the trial
and ordered that the preventive measure in respect of the applicant and his
three co-defendants “should remain unchanged”. The applicant’s request for
release was dismissed as follows:
“[The applicant and his three co-defendants] are charged with
grave crimes punishable with long-term imprisonment. The custodial measure was
applied [to them] during the preliminary investigation after assessment of the
defendants’ personalities, their health and the gravity of the crimes [charged
against them]. The arguments of the defendants and their representatives about
the unlawful application of the custodial measure ... cannot be taken into consideration
since this [issue] is not the subject matter of the present hearing. ...”
The applicant appealed against the above
decision, in so far as it concerned the preventive measure, to Volgograd Regional Court, arguing that the custodial measure had been applied to him
unlawfully and without consideration of his personal circumstances. The
applicant’s co-defendants also appealed.
On 25 January 2005 Volgograd Regional Court
upheld the decision of 26 October 2004 on appeal.
However, on 14 April 2005 the Presidium of
Volgograd Regional Court quashed the appeal decision of 25 January 2005 by
way of supervisory review, as it failed to address the arguments advanced on
behalf of the applicant and his co-defendants by their representatives.
On 19 July 2005 Volgograd Regional Court again upheld the decision of 26 October 2004 on appeal.
4. Detention between 30 November 2004 and the
applicant’s conviction on 7 June 2005
In the meantime, on 30
November 2004 Dzerzhinskiy District Court extended the applicant’s and his
three co-defendants’ detention for three months, until 28 February 2005:
“The circumstances which prompted the application of the
custodial measure did not change. The defendants’ reference to the fact that
they cannot exert pressure on witnesses or victims, as the preliminary
investigation is over, and that they will not abscond as they have no previous criminal
record and are no danger to society, can not be accepted by the court, because
at the present moment the trial has not yet started, and the court has not
begun the examination of the evidence in the case, including the examination of
witnesses and victims ...
In such circumstances the court does not find grounds for
altering the custodial measure to a more lenient one ...”
On 25 February 2005
Dzerzhinskiy District Court extended the applicant’s and his three co-defendants’
detention for three months, until 28 May 2005, even though the prosecution
considered it no longer necessary:
“The defendants are charged with grave crimes punishable by
long-term imprisonment. The custodial measure was applied [to them] after consideration
of their personalities, health, family situation, existence of dependents, and
the gravity of the crimes [with which they were charged]. No medical
certificates indicating that the defendants cannot be detained in the remand
prison for health reasons have been provided to the court.
The circumstances which prompted the application of the
custodial measure have not changed so far. The defendants’ statements that they
cannot exert pressure on witnesses and victims, as the majority of them have already
been questioned by the court, and that they will not abscond as they have no
previous criminal record and are not a danger to society, cannot be accepted by
the court, because at the present moment the trial has not been completed and
the court has not examined the evidence in full. The defendants’ maintaining their
innocence ... cannot justify changing the custodial measure to a more lenient
one, as the court is yet to assess the cumulative evidence and to reach a
conclusion as to the defendants’ guilt or innocence ...”
On 27 May 2005, having
reiterated its previous reasoning, Dzerzhinskiy District Court extended the
applicant’s and his three co-defendants’ detention for another three
months, until 28 June 2005.
C. The applicant’s conviction and release
On 7 June 2005 the
Dzerzhinskiy District Court convicted the applicant of fraud and forgery and
sentenced him to five years’ imprisonment. The pronouncement of the judgment
took four hours, from 8.30 p.m. to 00.30 a.m. the following day. The applicant’s
and his co-defendants’ request to be allowed to sit down during the
pronouncement of the judgment was turned down.
On 4 October 2005 the Volgograd Regional Court upheld
the judgment on appeal. The court held that the applicant’s sentence should be suspended
for two years, and the applicant placed on probation.
On 5 October 2005 the applicant was
released.
D. Allegations of non-provision of adequate food and deprivation
of sleep on the days of court hearings
According to the applicant, on
the dates of the hearings he was woken up at 6 a.m., taken from his cell to the
“waiting unit” or “assembly cell”, together with other detainees who had a
hearing on that day, and later on taken to the convoy area of the court-house. The
applicant had to wait in that area for long hours, sometimes until late in the afternoon,
until called by the court. At night the convoy transferred him back to the
remand prison, and he was again woken up early in the morning the following day
to be taken to the court. He received no food on the days of his transfers to
the courthouse, either at the remand prison or in the courthouse.
According to the Government,
the applicant was taken to the court-house on the following dates:
|
Year:
|
Dates:
|
Scheduled time of hearings:
|
|
, 22, 25 and 28 June
|
a.m.
|
|
|
July
|
a.m.
|
|
|
, 20 24, 27 and 28 September
|
a.m., 10 a.m., 11 a.m.,
11 a.m. and 11 a.m. respectively
|
|
|
, 19, 25, 26 October
|
30 p.m., 12 p.m., 11.30 a.m.
and 12 p.m. respectively
|
|
|
, 22 and 30 November
|
a.m., 11 a.m. and 11 a.m.
respectively
|
|
|
December
|
30 a.m.
|
|
January
|
a.m.
|
|
|
, 8, 14 and 25 February
|
a.m., 3 p.m., 3 p.m. and 2 p.m.
respectively
|
|
|
, 28 and 29 March
|
a.m., 3 p.m. and 1 p.m.
respectively
|
|
|
, 11, 12, 13, 15, 18, 20, 21,
22 April
|
20 p.m., 2 p.m., 12 p.m., 11 a.m.,
11 a.m., 11 a.m., 10.30 a.m., 11 a.m. and 11 a.m. respectively
|
|
|
, 12, 13, 17, 20, 27 May
|
p.m., 10.30 a.m., 12 p.m., 11.30
a.m., 12 p.m. and 11 a.m. respectively
|
|
|
, 6 and 7 June
|
30 a.m., 11 a.m. and 11 a.m.
respectively
|
The Government submitted that
on the days of the applicant’s transfers to the court-house the applicant was
woken up as usual at 6 a.m. As a rule, he was returned to the remand prison
before 10 p.m. On the rare occasions when the applicant was returned to the
remand prison after 10 p.m. he was allowed to sleep at any time during the
next day. The Government were unable to submit information as to the exact time
of the applicant’s arrivals at the remand prison from the court-house because
the relevant documentation had been destroyed in 2006 and 2009 due to the
expiry of the retention period, but they affirmed that the court’s working
hours were from 9 a.m. to 6 p.m.
According to the Government, on
the dates of the applicant’s transfers to the District Court he received dry
rations (bread or dry biscuits, tinned first and second
courses, sugar, tea, a plastic spoon and a plastic cup), in compliance
with the applicable legal norms. In the “waiting unit” of the remand prison and
the convoy area of the court the applicant was provided with hot water if he
requested it. In support of their submissions the Government provided a
certificate issued by the governor of IZ-34/1 on 12 October 2010
accompanied by two invoices (накладные)
from the applicant’s remand prison record, dated 11 May and
20 May 2005 on provision of fifty-two dry rations and one dry ration
respectively to detainees transported to the court-house on those dates.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Since 1 July 2002, criminal-law matters have
been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of
18 December 2001, “the Code”).
A. Preventive measures
“Preventive measures” include an undertaking not
to leave a town or region, personal surety, bail and detention (Article 98).
When deciding on a preventive measure, the competent authority is required to
consider whether there are “sufficient grounds to believe” that the accused
would abscond during the investigation or trial, reoffend, or obstruct the
establishment of the truth (Article 97). It must also take into account the
gravity of the charge, information on the accused’s character, his or her
profession, age, state of health, family status and other circumstances
(Article 99). In exceptional circumstances, and when there exist grounds provided
for by Article 97, a preventive measure may be applied to a suspect, taking
into account the circumstances listed in Article 99 (Article 100). If
necessary, the suspect or accused may be asked to give an undertaking to appear
in court (Article 112).
B. Limits on the duration of detention
1. Two types of detention
The Code makes a distinction between two types
of detention: the first being “pending investigation”, that is, while a
competent agency - the police or a prosecutor’s office - is investigating the
case, and the second being “before the court” (or “pending trial”), at the
judicial stage.
2. Limits on the duration of detention “pending investigation”
A custodial measure may only be ordered by a
judicial decision in respect of a person who is suspected of, or charged with,
a criminal offence punishable by more than two years’ imprisonment (Article
108). The maximum length of detention pending the investigation is two months
(Article 109). A judge may extend that period up to six months
(Article 109 § 2). Further extensions may only be granted by a
judge if the person is charged with serious or particularly serious criminal
offences (Article 109 § 3). No extension beyond eighteen months is
permissible and the detainee must be released immediately (Article 109
§ 4).
3. Limits on the duration of detention “pending trial”
From the
time the prosecutor sends the case to the trial court, the defendant’s
detention falls under the category “before the court” (or “pending trial”). The
period of detention pending trial is calculated up to the date on which the
first-instance judgment is given. It may not normally exceed six months from
the moment the case file arrives at the court, but if the case concerns serious
or particularly serious criminal offences, the trial court may approve one or
more extensions, of no longer than three months each (Article 255 §§ 2
and 3).
In its resolution no. 1 of 5 March 2004 “On
the Application by Courts of the Russian Code of Criminal Procedure”, as in
force at the relevant time, the Supreme Court of Russia noted with regard to
the provisions of Article 255 § 3 of the Code that, when deciding whether to
extend a defendant’s detention pending trial, the court should indicate the
grounds justifying the extension and its maximum duration (paragraph 16).
C. Proceedings to examine the lawfulness of detention
1. During detention “pending investigation”
An appeal may be lodged
with a higher court within three days against a judicial decision ordering or
extending detention. The appeal court must decide the appeal within three days of
receiving it (Article 108 § 10).
2. During detention “pending trial”
At any time during a trial
the court may order, vary or revoke any preventive measure, including detention
(Article 255 § 1). An appeal against such a decision lies with the
higher court. It must be lodged within ten days and examined no later than one
month after its receipt (Articles 255 § 4 and 374).
D. Detainees’ right to free food and eight hours of
uninterrupted sleep
. The Pre-trial
Detention Act (Federal Law no. 103-FZ of 15 July 1995) provides that
detainees have, in particular, the right to
receive free food, including when they are taking part in court hearings, and
to have eight hours’ uninterrupted sleep at night (section 17 §§ 9
and 10).
. On
4 February 2004 the Ministry of Justice adopted rules on supply of dry rations, under which those
suspected or accused of criminal offences should be supplied with dry rations (bread,
precooked first and second courses, sugar, tea, tableware) during their
presence at a court-house. Detainees should be supplied with hot water to
consume with the rations.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been
subjected to inhuman and degrading treatment by being deprived of food on days he
was transported to the court-house, as well as deprived of adequate sleep
between court hearings. He relied on Article 3 of the Convention, which
provides as follows:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
A. The parties’ submissions
The Government argued that the applicant had
failed to exhaust available domestic remedies because he had not complained to
the competent domestic authorities about the alleged violation of his rights
under Article 3 of the Convention. On the merits, the Government submitted that
the applicant had been provided with dry rations on the days he was transported
to the court-house and that he had been afforded adequate opportunity to sleep between
court hearings, which ruled out the alleged violation of Article 3.
The applicant argued that the alleged violations
had been of a structural nature and that no effective domestic remedy existed
to address them. On the merits, the applicant submitted that the evidence
provided by the Government had been rather selective, for which reason their
assertions could not be said to have been duly supported. He noted that the
Government had not denied that on occasion he had been returned from the court-house
to the remand prison after 10 p.m. He further noted that when there were
hearings every working day, in April-May 2005, he had not in fact had an
opportunity to catch up on his sleep the following day as the Government had suggested
(see paragraphs 34-35 above). The applicant also drew the Court’s attention to
the fact that the pronouncement of the judgment had taken place at night.
Regarding the issue of provision of food on the days he was transferred to the
court-house, the applicant submitted that he had never been given any dry
rations, and argued that the convoy area of Dzerzhinskiy District Court had not
been equipped with any facilities for heating or eating food. He claimed that
the two invoices of 11 and 20 May 2005 provided by the Government (see
paragraph 36 above) had not been sufficient evidence to prove that he had been
provided with food for two years on the days he was transferred to the court-house.
He further challenged the validity of those documents and noted that while on
20 May 2005 the relevant invoice concerned the provision of dry rations to
only one person, in reality on that day the applicant had not been the only person
being transferred to the court-house. The same escort also transported the
applicant’s three co-defendants and several others.
B. The Court’s assessment
1. Admissibility
The Government raised the objection of
non-exhaustion of domestic remedies by the applicant. The Court reiterates that
the rule of exhaustion of domestic remedies under Article 35 § 1 of the
Convention obliges applicants to use first the remedies which are available and
sufficient in the domestic legal system to enable them to obtain redress for
the breaches alleged. The existence of the remedies must be sufficiently
certain both in theory and in practice, failing which they will lack the
requisite accessibility and effectiveness. It is incumbent on the respondent
Government claiming non-exhaustion to indicate to the Court with sufficient
clarity the remedies to which the applicants have not had recourse and to
satisfy the Court that the remedies in question were effective and available in
theory and in practice at the relevant time, that is to say that they were
accessible, were capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Guliyev v.
Russia, no. 24650/02, §§ 51-52, 19 June 2008, with further
references).
In the present case the Government did not
specify what would have been an effective remedy for the applicant to have
recourse to with regard to his complaints and how it could have prevented the
alleged violations or their continuation or afforded the applicant adequate
redress. In such circumstances the Court considers that the Government have not
substantiated their claim as to the availability to the applicant of an
effective domestic remedy for his complaint under Article 3. Accordingly, the
Court rejects the Government’s objection.
Furthermore, the Court considers that this
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It notes that it is not inadmissible on any other
ground. It must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that
Article 3 of the Convention enshrines one of the most fundamental values of
democratic society. It prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the circumstances and the
victim’s behaviour (see, for example, Labita
v. Italy [GC], no. 26772/95,
§ 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of
this minimum is relative; it depends on all the circumstances of the case, such
as the duration of the treatment, its physical and mental effects and, in some
cases, the sex, age and state of health of the victim (see, among other
authorities, Ireland v. the United
Kingdom, 18 January 1978, § 162,
Series A no. 25).
. Ill-treatment
that attains such a minimum level of severity usually involves actual bodily
injury or intense physical or mental suffering. However, even in the absence of
these, where treatment humiliates or debases an individual, showing a lack of
respect for or diminishing his or her human dignity, or arouses feelings of
fear, anguish or inferiority capable of breaking an individual’s moral and
physical resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see, among other authorities, Vasyukov v. Russia, no.
2974/05, § 59, 5 April 2011).
. In
the context of deprivation of liberty the Court has consistently stressed that
to fall under Article 3 the suffering and humiliation involved must in any
event go beyond that inevitable element of suffering and humiliation connected
with detention. The State must ensure that a person is detained in conditions
which are compatible with respect for human dignity, that the manner and method
of the execution of the measure do not subject him to distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in detention,
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured (see Kudła
v. Poland [GC], no. 30210/96, §§ 92-94,
ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006).
. When
assessing conditions of detention, account has to be taken of the cumulative
effects of these conditions, as well as of specific allegations made by the applicant
(see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
. Allegations
of ill-treatment must be supported by appropriate evidence. In assessing
evidence, the Court has generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
(b) Application of the general principles to the
present case
. The
Court observes that in the period between June 2004 and June 2005 the applicant
was transported to the Dzerzhinskiy District Court on forty-four
occasions (see paragraph 34 above). It further observes that the thrust of the applicant’s complaint is hunger and fatigue on the days of court hearings due
to non-provision of food on those days and lack of sleep between the court
hearings.
Regarding the alleged malnutrition, the
applicant claimed that on the days of court hearings he had not received any
food, either at the remand prison or at the court-house (see paragraph 33
above). The Government did not contest the applicant’s allegation that he had
not received any breakfast at the remand prison prior to being transferred to
the court-house, or dinner following his return (see Denisenko and
Bogdanchikov v. Russia, no. 3811/02, § 108, 12 February 2009;
Svetlana Kazmina v. Russia, no. 8609/04, § 78, 2 December 2010; and, most recently, Idalov v. Russia [GC], no. 5826/03, § 105, 22 May 2012). They claimed, however, that the
applicant had been provided with packed meals to take with him to the court-house.
The Government supported their submissions with a certificate issued by the
governor of the remand prison in October 2010, accompanied by copies of two
invoices dated 11 May and 20 May 2005 (see paragraph 36 above) from
the applicant’s remand prison record. The Court notes, however, that no
invoices for the applicant’s remaining forty-two transfers to the court-house
had been made available to the Court. The Court further notes the applicant’s
argument to the effect that on 20 May 2005 he was not the only person
transferred to the court-house, yet the relevant invoice reflected provision of
dry rations to one person only. The Government did not advance any counter-argument.
In such circumstances the Court remains
unconvinced that on all forty-four occasions of the applicant’s transfers to
the court-house the latter received packed meals. In any event, no evidence was
submitted by the Government that the convoy area of the court-house had been
equipped for heating and eating food at that time (compare to Salmanov v.
Russia, no. 3522/04, § 64, 31 July 2008, and Starokadomskiy
v. Russia, no. 42239/02, § 58, 31 July 2008).
Regarding the applicant’s allegation of lack of
sleep, the Court observes, and it has not been disputed by the parties, that on
the days of court hearings the applicant was woken up at 6 a.m. The Court
further observes that, although the Government were unable to provide
information as to the exact time the applicant was brought back to the remand
prison from the court-house and to his cell, they acknowledged that on some
occasions this took place after 10 p.m., in which case the applicant was given
an opportunity to catch up on his sleep during the following day (see paragraph
35 above). The Court notes, however, that the applicant was on quite a few
occasions taken to the court-house several days in a row, especially at the later
stages of the trial, in the period between April and June 2005, which, when he
was returned to the remand prison after 10 p.m., made any extra sleep the
following day impossible (see paragraph 34 above). The Court is particularly
mindful of the fact that the pronouncement of the judgment which started on
7 June at 8.30 p.m. lasted until 00.30 a.m. on 8 June 2005, and that the
applicant had had to remain standing up (see paragraph 30 above).
. Having
regard to the foregoing, the Court considers that in the circumstances of this
case the cumulative effect of malnutrition and inadequate sleep on the days of
court hearings must have been of an intensity such as to induce in the
applicant physical suffering and mental fatigue. This must have been further
aggravated by the fact that the above treatment occurred during the applicant’s
trial, that is, when he most needed his powers of concentration and mental
alertness. The Court therefore concludes that the applicant was subjected to
inhuman and degrading treatment contrary to Article 3 of the Convention.
. Accordingly,
there has been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained under Article 5 § 1 (c)
of the Convention that his detention during judicial proceedings had not been
lawful. The relevant parts of Article 5 read as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so ...”
A. The parties’ submissions
The Government submitted that except for the
period from 30 May to 14 June 2004 when the applicant had been
detained without any valid court order, the applicant’s detention had been duly
authorised and had been in accordance with a procedure established by law, as
required by Article 5 § 1 of the Convention.
The applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The Court observes at the
outset that a part of the applicant’s complaint refers to a period of his
detention which ended more than six months before he lodged the application
with the Court on 19 July 2005. The most recent detention order that the
Court may examine was issued on 26 October 2004. The final decision
concerning the lawfulness of that order was given on 19 July 2005, that is
within the six months preceding the lodging of the application. The civil action
for damages pursued by the applicant in 2005-06 for his unlawful detention
between 30 May and 14 June 2004 had no bearing on the question of
exhaustion of domestic remedies in respect of the applicant’s complaint under
Article 5 § 1, as that court was not capable of ordering the
applicant’s release, and therefore the Court will not take that action into
consideration for the calculation of the six-month time-limit (see Moskovets
v. Russia, no. 14370/03, § 51, 23 April 2009, with further
references). The Court therefore considers that in so far as the applicant’s
complaint concerns the detention orders issued before 26 October 2004 it
has been introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
The Court further notes that the remainder of
the applicant’s 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.
2. Merits
(a) General principles
The Court reiterates that Article 5 § 1 of the
Convention requires in the first place that detention be “lawful”, which
includes the condition of compliance with a procedure prescribed by law. The
Convention here essentially refers back to national law and states the
obligation to conform to the substantive and procedural rules thereof, but it
requires in addition that any deprivation of liberty should be consistent with
the purpose of Article 5, namely to protect individuals from arbitrariness
(see, as a recent authority, Medvedyev and
Others v. France [GC],
no. 3394/03, § 79, ECHR 2010). It is in the first place for the national
authorities, and notably the courts, to interpret domestic law, and in
particular, rules of a procedural nature, and the Court will not substitute its
own interpretation for theirs in the absence of arbitrariness. However, since
under Article 5 § 1 of the Convention failure to comply with domestic law may
entail a breach of the Convention, it follows that the Court can and should exercise
a certain power to review whether this law has been complied with (see Toshev
v. Bulgaria, no. 56308/00, § 58, 10 August 2006, and Shteyn (Stein) v. Russia, no.
23691/06, §§ 89 and 94, 18 June 2009).
The Court must, moreover, ascertain whether the domestic
law itself is in conformity with the Convention, including the general
principles expressed or implied therein. On this last point, the Court has
stressed that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied. It is
therefore essential that the conditions for deprivation of liberty under
domestic law be clearly defined and that the law itself be foreseeable in its
application, so that it meets the standard of “lawfulness” set by the
Convention, a standard which requires that all law be sufficiently precise to
allow the person, if need be with appropriate advice, to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action
may entail (see, among recent authorities, Savenkova
v. Russia, no. 30930/02, § 65, 4 March 2010).
(b) Application of the general principles to the
present case
(i) Applicant’s detention between 26 October and 30
November 2004
The Court notes that on 26 October 2004
Dzerzhinskiy District Court scheduled the opening day of the trial and ordered
that the preventive measure in respect of the applicant and his three
co-defendants “should remain unchanged”. In the same hearing the court examined
the applicant’s application for release and dismissed it, having taken note of the
gravity of the charges against him and the severity of the potential sentence
(see paragraph 22 above).
The Court has previously found violations of
Article 5 § 1 (c) of the Convention in many Russian cases where
the domestic court maintained a custodial measure in respect of applicants,
without indicating any particular reason for such a decision or setting a
specific time-limit for the continued detention or for a periodic review of the
preventive measure (see Solovyev v. Russia, no. 2708/02, §§ 95-100,
24 May 2007; Ignatov v. Russia,
no. 27193/02, §§ 78-82, 24 May 2007; Shukhardin v. Russia,
no. 65734/01, §§ 65-70, 28 June 2007; Belov
v. Russia, no. 22053/02, §§ 79-82, 3 July
2008; Gubkin v. Russia,
no. 36941/02, §§ 111-115, 23 April 2009; Bakhmutskiy v. Russia,
no. 36932/02, §§ 111-115, 25 June 2009; Avdeyev and Veryayev v. Russia,
no. 2737/04, §§ 43-47, 9 July 2009; and, most recently, Chumakov
v. Russia, no. 41794/04, §§ 129-131,
24 April 2012).
The Court sees no reason to reach a different
conclusion in the present case. Although the domestic court advanced certain
reasoning for maintaining the custodial measure when it examined the applicant’s
application for release, it nevertheless failed to specify the period until
which the custodial measure had been applied. It follows that until
30 November 2004, when Dzerzhinskiy District Court issued its subsequent
detention order, the applicant remained in a state of uncertainty as to the
time that he would have to spend in detention pursuant to the court order of
26 October 2004. The Court therefore considers that the decision of
26 October 2004 did not comply with the requirements of clarity,
foreseeability and protection from arbitrariness, and therefore the applicant’s
detention pursuant to that decision was not “lawful” for the purposes of
Article 5 § 1 of the Convention.
(ii) Applicant’s detention between 30 November
2004 and 7 June 2005
As regards the alleged unlawfulness of the
applicant’s detention between 30 November 2004 and 7 June 2005, the Court
observes that in its decisions of 30 November 2004, 25 February and
27 May 2005 Dzerzhinskiy District Court extended the term of the applicant’s
detention until 28 February, 28 May and 28 June 2005 respectively. It also
provided certain grounds for those decisions, their sufficiency and relevance
being analysed below in the context of compliance with Article 5 § 3 of the
Convention. It has never been alleged by the applicant that the District Court
acted in excess of its jurisdiction, or that there were any flaws in the
relevant detention orders amounting to “a gross and obvious irregularity” so as
to render the underlying periods of detention in breach of Article 5 § 1 of the
Convention (see Mooren v. Germany [GC],
no. 11364/03, § 84, 9 July 2009).
The Court is therefore satisfied that the period
of the applicant’s detention from 30 November 2004 until 7 June 2005,
when he was convicted by the trial court, was lawful within the meaning of
Article 5 § 1.
(iii) Summary of the findings
The Court has found a violation of Article 5 § 1
(c) of the Convention on account of the applicant’s detention from 26 October
to 30 November 2004.
The Court has found no violation of Article 5 §
1 (c) of the Convention on account of the applicant’s detention in the period
from 30 November 2004 to 7 June 2005.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
The applicant complained under Article 5 § 3 of
the Convention that his pre-trial detention had not been based on relevant and
sufficient reasons. Article 5 § 3 provides 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 ...”
A. The parties’ submissions
The Government submitted that the applicant’s
detention had been prompted, inter alia, by the risk of his absconding,
which had been a real one, since the applicant had been hiding from the
investigation and had been placed on a wanted list.
The applicant submitted that until
23 September 2003 he had been outside Russia on annual leave and had not
known that criminal proceedings had been instituted against him. There had been
no proof that during his absence the investigation authority had ever tried to
summon him either at work or at home or inquire about his whereabouts. The
applicant argued that he had not known about the institution of the criminal
proceedings against him, or that he was being searched for, until
29 September 2003, following which he immediately made an appointment with
the investigation department of the Volgograd Regional Prosecutor’s Office,
where he had been arrested. Therefore, the Government’s argument that the applicant
“had been hiding” from the investigation was groundless. The applicant further argued
that the reasoning advanced by the domestic court when applying to him the
custodial measure had not been supported by any objective fact. Relying on
Article 99 of the Code of Criminal Procedure he deplored the fact that none of
the detention orders mentioned the circumstances pertinent to the assessment of
his personality, family situation, health, occupation, and so on. In
particular, the applicant was a widower with two minor dependent children and
an elderly mother suffering from cancer. He had been a pilot who had received a
Pilot Safety Award and Air Transport High Achiever Award, had excellent references,
a scientific degree of Candidate of Technical Sciences in Air Transport
Operation, was a Doctor of Philosophy and a Corresponding Member of the International Academy of Man in Aerospace
Systems. He had no previous criminal record and was suffering
from several medical conditions. The applicant also deplored the fact that the
detention orders extending his detention pending trial had been taken
simultaneously in respect of several individuals, namely the applicant and his
three co-defendants, without a case-by-case assessment of their individual
circumstances. Furthermore, the applicant noted that on 25 February 2005
his detention had been extended despite the fact that the prosecutor no longer
deemed it necessary by then. The applicant further claimed that there had been
no risk that he would exert pressure on victims and witnesses at the trial stage,
as none of them had given statements to his disadvantage.
B. The Court’s assessment
1. Admissibility
The Court notes that the Government did not put
forward any formal objections to the admissibility of this complaint. 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.
2. Merits
(a) General principles
In determining the length of detention during
judicial proceedings under Article 5 § 3 of the Convention, the period to be taken into
consideration begins on the day the accused is taken into custody and ends on
the day when the charge is determined, even if only by a court of first
instance (see Panchenko
v. Russia, no. 45100/98, § 91, 8 February 2005; Labita,
cited above, §§ 145 and 147; and Wemhoff
v. Germany, 27 June 1968, § 9, Series A no. 7).
Under the Court’s case-law, the issue of whether
a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable
for an accused to remain in detention must be assessed in each case according
to its particular features. Continued detention can be justified in a given
case only if there are specific indications of a genuine requirement of public
interest which, notwithstanding the presumption of innocence, outweighs the
rule of respect for individual liberty (see, among other authorities, W. v.
Switzerland, 26 January 1993, § 30, Series A no. 254-A, and
Pantano v. Italy, no. 60851/00, §
66, 6 November 2003).
The persistence of reasonable suspicion that an
arrested person has committed an offence is a condition sine qua non for the lawfulness of the
continued detention, but 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 continued to justify 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,
cited above, §§ 152-153). 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). When deciding whether a person
should be released or detained, the authorities are obliged to consider
alternative measures of ensuring his appearance in court (see
Jablonski v. Poland, no. 33492/96, § 83, 21 December
2000).
(b) Application of the general principles to the
present case
(i) Period to be taken into consideration
The applicant was taken into custody on
29 September 2003. He was convicted on 7 June 2005. The total length
of the applicant’s pre-trial detention amounted therefore to one year, eight
months and nine days.
(ii) Grounds for continued detention
The Court observes that the applicant was
initially detained in September 2003 because he was suspected of a criminal
offence and because he had allegedly fled from the investigation following the
institution of the criminal proceedings against him and had been placed on a wanted
list (see paragraph 10 above).
The applicant’s detention pending the
investigation was subsequently extended in November 2003 and March 2004 with
reference to the gravity of the charges against him and the fact that he had been
placed on an international wanted list prior to his arrest, which gave the
court sufficient grounds to believe that if at large the applicant might
obstruct the proceedings. Under these circumstances the court held that the
application of a non-custodial preventive measure had not been possible (see
paragraph 14 above).
The Court further observes that at the trial stage
in the period between 30 May and 14 June 2004 the applicant remained
in detention without any judicial order at all, and later on, between
14 June and 26 October 2004 his detention was maintained without
mention of any reasoning (see paragraphs 17 and 21above).
In the subsequent period of the applicant’s
detention pending trial the applicant’s detention was extended on four
occasions with reference to the gravity of the charges against him and the
severity of the potential sentence, and the necessity for the court to finish
the examination of the full body of evidence. On one of these occasions the
prosecutor took the side of the applicant and also sought an alternative,
non-custodial, measure for the applicant and his co-defendants, in vain (see
paragraphs 22, 27, 28 and 29 above).
Throughout the whole period of the applicant’s
detention pending trial the court issued collective detention orders in respect
of the applicant and his three co-defendants.
As regards the domestic authorities’ reliance on
the gravity of the charges as the decisive element, the Court has repeatedly
held that this reason cannot in itself serve to justify long periods of
detention. Although the severity of the sentence faced is a relevant element in
the assessment of the risk of 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 gravity of the offence. Nor can
continuation of the detention be used to anticipate a custodial sentence (see,
among recent authorities, Fedorenko v. Russia, no. 39602/05, § 67, 20 September 2011, with further
references). This is particularly true in cases such as the present one,
where the characterisation in law of the facts - and thus the sentence faced by
the applicant - was determined by the prosecution without judicial control of
the issue whether collected evidence supported a reasonable suspicion that the
applicant had committed the imputed offence (see Rokhlina
v. Russia, no. 54071/00, § 66, 7 April 2005).
It remains to be ascertained whether the
domestic courts established and convincingly demonstrated the existence of specific
facts in support of their conclusions that the applicant might abscond or obstruct
justice in some other way. The Court reiterates in this respect that it is
incumbent on the domestic authorities to establish the existence of specific
facts relevant to the grounds for continued detention. Shifting the burden of
proof to the detained person in such matters is tantamount to overturning the
rule of Article 5 of the Convention, a provision which makes detention an exceptional
departure from the right to liberty and one that is only permissible in
exhaustively enumerated and strictly defined cases (see Rokhlina,
cited above, § 67, and Fedorenko, cited above, § 68).
The Court observes in this connection that the
risk that the applicant would abscond or obstruct the proceedings was based on
the fact that the applicant had allegedly left Russia after the institution of
the criminal proceedings against him. The Court observes at the same time that
the documents in its possession indicate that at no time did the domestic court
address the applicant’s argument to the effect that he had left Russia before
the institution of the criminal proceedings and that he had not known and could
not have known about the institution of the criminal proceedings until after
his return. It further appears that the domestic court gave no consideration at
all to the circumstances of the applicant’s arrest, which, in the Court’s view,
was an important factor in the assessment of the presumed risks.
It follows from the text of the detention orders
that at no point did the domestic courts describe the applicant’s personality
in detail, disclose any evidence, or mention any particular facts of the
applicant’s case warranting his continued detention. The judiciary never
specified why, notwithstanding the arguments put forward by the applicant in
support of his requests for release, they considered the risk of his absconding
or interference with the course of justice to exist and to be decisive.
Moreover, the preliminary investigation in the
present case had ended by 31 May 2004, but the applicant remained in
detention for another year, until his conviction on 7 June 2005, even when
the prosecution saw no need for continued application of the custodial measure.
The Court reiterates in this connection that whilst at the initial stages of
the investigation the risk that an accused person might pervert the course of
justice could justify keeping him or her in custody, after the evidence has
been collected that ground becomes less strong (see Mamedova
v. Russia, no. 7064/05, § 79, 1 June 2006).
Regarding the issuing of collective detention
orders in respect of the applicant and his co-defendants without a case-by-case
assessment of the grounds for detention in respect of each of them, the Court
has already found such a practice incompatible with Article 5 § 3 of the Convention
(see, among recent authorities, Sizov v. Russia, no. 33123/08, § 54, 15 March 2011; Yuriy
Yakovlev v. Russia, no. 5453/08, § 86, 29 April 2010; and Sorokin v. Russia, no. 7739/06, § 67, 30 July 2009).
Having regard to the materials in its possession
and the above considerations, the Court considers that the domestic courts have
not convincingly demonstrated the existence of any specific indications of a
genuine requirement of public interest which outweighed the rule of respect for
individual liberty in the applicant’s case. By relying essentially on the
gravity of the charges against the applicant and failing to address specific
facts capable of substantiating the presumed risks of the applicant’s absconding
or interfering with the proceedings, the authorities extended the applicant’s
detention on grounds which, although to some extent “relevant”, cannot be
regarded as “sufficient”. In these circumstances it would not be necessary to
examine whether the proceedings were conducted with “special diligence”.
There has therefore been a violation of Article
5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant further complained that the lawfulness of his detention pursuant to the court order
of 26 October 2004 had not been decided speedily. He relied on Article 5 §
4 of the Convention, which reads as follows:
“4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.”
A. The parties’ submissions
The Government explained the length of the
examination of the applicant’s appeal against the decision of 26 October
2004 by the fact that the applicants’ co-defendants and their representatives had
also lodged appeals against the above decision, which required the appeal court
to obtain the attendance of all interested parties. They considered that the
requirements of Article 5 § 4 of the Convention had not been
breached.
The applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
(a) General principles
The Court reiterates that Article 5 § 4, in guaranteeing to individuals arrested or detained a
right to take proceedings to challenge the lawfulness of their detention, also
proclaims their right, following the institution of such proceedings, to a
speedy judicial decision concerning the lawfulness of detention and ordering
its termination if it proves unlawful. Although it does not compel the
Contracting States to set up a second level of jurisdiction for the examination
of the lawfulness of detention, a State which institutes such a system must in
principle accord to detainees the same guarantees on appeal as at first
instance (see Navarra v. France,
23 November 1993, § 28, Series A no. 273-B, and Toth v. Austria,
12 December 1991, § 84, Series A no. 224). The requirement that
a decision be given “speedily” is undeniably one such guarantee; while one year
per level of jurisdiction may be a rough rule of thumb in Article 6 § 1 cases,
Article 5 § 4, concerning issues of liberty, requires particular expedition
(see Hutchison Reid v. the
United Kingdom, no. 50272/99,
§ 79, ECHR 2003-IV). In that context, the Court also observes that
there is a special need for a swift decision determining the lawfulness of
detention in cases where a trial is pending, because the defendant should
benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland,
no. 27504/95, § 76, 4 October 2001).
Although the number of days taken by the
relevant proceedings is obviously an important element, it is not necessarily
in itself decisive for the question of whether a decision has been given with
the requisite speed (see Merie
v. the Netherlands (dec.), no. 664/05, 20 September
2007). What is taken into account is the diligence shown by the authorities,
the delay attributable to the applicant and any factors causing delay for which
the State cannot be held responsible (see Jablonski,
cited above, §§ 91-94, and G.B. v. Switzerland,
no. 27426/95, §§ 34-39, 30 November 2000).
(b) Application of the general principles to the
present case
The Court notes that the applicant’s appeal
against the court order of 26 October 2004 was examined for the first time
on 25 January 2005. The Court further notes that on 14 April 2005 the
above appeal decision was quashed by way of supervisory review as it had failed
to address the arguments advanced by the applicant’s and his co-defendants’
representatives. The subsequent examination of the lawfulness of the court
order of 26 October 2004 took place on 19 July 2005, which was over a
month after the applicant’s conviction by the trial court on 7 June 2005
(see paragraphs 21-26 above).
The Government did not claim that the applicant
delayed lodging his appeal against the court order of 26 October 2004.
Neither did they claim, or adduce any evidence to show that, having lodged his
appeal, the applicant himself caused any delays in its examination. On the
other hand, having regard in particular to the reasons for the quashing of the
first appeal decision by way of supervisory review, it appears that the overall
delay in the proceedings for review of the lawfulness of the applicant’s
detention pursuant to the court order of 26 October 2004 had been due
wholly to the fault of the domestic authorities.
In view of the above the Court considers that
the review proceedings which lasted three months before the quashing of the first
appeal decision by way of supervisory review, and almost another three months
after the quashing, cannot be considered compatible with the “speediness”
requirement of Article 5 § 4, especially taking into account that its entire
duration was attributable to the authorities.
There has therefore been a violation of Article
5 § 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article
5 § 1 about the alleged unlawfulness of his arrest, under Article 5 § 5 about
lack of compensation for his unlawful detention, under Article 6 about the
length of the proceedings and the findings of the domestic court, under
Article 8 about the failure to promptly inform his family about his arrest
and to consider his family situation when the issue of his detention was
examined. He further complained under Article 13 in conjunction with Article 6
with regard to his complaint as to the length of the proceedings and in
conjunction with Article 5 § 3.
The Court has examined the above complaints, as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 200,000 euros (EUR) in compensation
for pecuniary damage, half of this sum representing the salary he would have
received in the period between October 2003 and October 2005 had he not been
detained, and the other half representing the sum he had paid for voluntary
medical insurance in 2004, 2005 and 2009 and for various medical examinations carried
out in March-April 2009. The applicant further claimed EUR 200,000 in compensation
for non-pecuniary damage caused him by the allegedly excessive length of the
proceedings, lack of sufficient reasons for his continued detention,
malnutrition and lack of sleep on the days of court hearings.
The Government submitted that there was no
causal link between the violations found and the damages claimed by the
applicant.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. As regards the non-pecuniary damage,
the Court considers that the applicant must have suffered distress and
frustration resulting from malnutrition and lack of adequate sleep on the days
of court hearings and his unlawful detention in the absence of sufficient
grounds,. However, the amount claimed by the applicant appears excessive. Making
its assessment on an equitable basis, the Court awards the applicant EUR 15,000
for the non-pecuniary damage, plus any tax that may be chargeable on the
above amount.
B. Costs and expenses
The applicant also claimed 600,000 Russian
roubles (RUB) in compensation for his legal
representation before the Court. He submitted a copy of an agreement with Ms S.
Mazayeva of 10 May 2005 no. 6/513 and a set of receipts confirming the payment of
RUB 500,000 in the performance of the above agreement to the Volgograd Bar
Association, of which Ms S. Mazayeva is a member.
The Government argued that the expenses claimed
were not reasonable.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 6,000 for the proceedings
before the Court, plus any tax that may be chargeable to
the applicant on that amount.
C. Default interest rate
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible:
(a) the
complaint under Article 3 of the Convention concerning the alleged malnutrition
and lack of adequate sleep on the days of court hearings;
(b) the
complaint under Article 5 § 1 concerning the alleged unlawfulness
of the applicant’s detention in the period after 26 October 2004;
(c) the
complaint under Article 5 § 3 concerning the alleged lack of
sufficient reasoning for the applicant’s continued detention;
(d) the
complaint under Article 5 § 4 concerning the alleged lack of speedy
judicial review of the lawfulness of the applicant’s detention pursuant to the
court order of 26 October 2004;
2. Declares the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 3 of the Convention on account of the failure of the domestic
authorities to provide the applicant with adequate food and sleep on the days
of court hearings;
4. Holds that there has been a violation of
Article 5 § 1 of the Convention on account of the applicant’s detention between
26 October to 30 November 2004;
5. Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant’s detention between
30 November 2004 and 7 June 2005;
6. Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the failure of the domestic court
to advance sufficient reasoning for the applicant’s continued detention;
7. Holds that there has been a violation of
Article 5 § 4 of the Convention on account of protracted examination of the
lawfulness of the applicant’s detention pursuant to the court order of
26 October 2004;
8. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable at the
date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage; and
(ii) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
9. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
