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ROMANOV v. RUSSIA - 63993/00 [2005] ECHR 933 (20 October 2005)
URL: http://www.bailii.org/eu/cases/ECHR/2005/933.html
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[2005] ECHR 933
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THIRD
SECTION
CASE OF
ROMANOV v. RUSSIA
(Application
no. 63993/00)
JUDGMENT
STRASBOURG
20
October 2005
FINAL
20/01/2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Romanov v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr L. Caflisch,
Mrs M.
Tsatsa-Nikolovska,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mr E.
Myjer, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 1 April 2004 and 29 September 2005,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 63993/00) 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, Ilya Eduardovich Romanov
(“the applicant”), on 16 October 2000.
The
applicant, who had been granted legal aid, was represented by
Mr A.A. Rekant, a member of Комитет
за
Гражданские
Права,
a Human Rights NGO based in Moscow. The Russian Government
(“the Government”) were represented by Mr P.A. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged that the conditions in the psychiatric ward of the
detention facility “Butyrskiy”, in which he was confined
for over a year and three months, were
incompatible with Article 3 of the Convention. He alleged that
the length of his detention on remand had been excessive and in
breach of Article 5 § 3 of the Convention. He alleged a
violation of Article 6 of the Convention in that he had been denied
the right to appear before a trial court.
The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
By
a decision of 1 April 2004, the Court declared the application partly
admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine),
the parties replied in writing to each other's observations.
On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967. He appears to be
currently detained in Ukraine.
A. The applicant's detention
At
8 p.m. on 12 October 1998 the applicant, who was allegedly in a state
of intoxication, was arrested in the street by a police patrol and
taken to a police station. He was then searched and a certain amount
of marijuana was allegedly found on him.
At
12:15 a.m. on 13 October 1998 the applicant was detained, by a
decision of an investigator of the Akademicheskiy District Police
Department of Moscow, on suspicion of illegal acquisition and
possession of drugs. The investigator referred to the suppression of
crime and prevention of the risk of the applicant's absconding as the
reasons for the decision.
On
the same day the applicant was charged with the illegal acquisition
of drugs for personal consumption and possession.
On
15 October 1998 the investigator issued an order to detain the
applicant on remand, which was approved by a public prosecutor on the
same day. The order referred to the applicant's personality, the
danger posed to the public by the crime with which he had been
charged and the risk of his absconding.
On
16 October 1998 the applicant was confined in the
detention facility IZ 48/2 “Butyrskiy” in Moscow.
By
a decision of the investigating authority the applicant was subjected
to a psychiatric examination.
On
19 November 1998 he was examined by experts from the Alekseev
Psychiatric Hospital of Moscow. As the experts had difficulties in
reaching conclusions the applicant was placed in the Serbskiy
Forensic Psychiatry Institute in Moscow, which examined him from
10 December 1998 to 6 January 1999. It was noted that he had
never previously been found to be suffering from a mental illness.
The commission of experts diagnosed the applicant as suffering from
profound dissociative personality disorder (innate psychopathy) and
found that he could not be held responsible for the offence with
which he had been charged. The experts recommended that the applicant
undergo psychiatric treatment on an out patient basis at his
place of residence.
The
period of the investigation and the applicant's detention in custody
were extended twice by the public prosecutor's office, first until
12 January 1999 and later until 12 February 1999.
On
10 February 1999 the investigation was completed and the applicant's
criminal case was submitted to the Gagarinskiy District Court of
Moscow.
B. Court proceedings
On
28 June 1999 the Gagarinskiy District Court of Moscow dismissed the
applicant's
request for release and ordered, while
giving no reasons and no chance for the defence to object, an
additional psychiatric examination. On 23 July 1999 the decision was
upheld by the Moscow City Court on appeal.
The
applicant's examination by the commission of experts of the Serbskiy
Forensic Psychiatry Institute on 25 August 1999 revealed no
significant changes in the applicant's memory, attention and
mental faculties. As the commission was
uncertain as to the state of the applicant's mental health, it
recommended he undergo a second psychiatric examination as an
in patient.
The
latter was ordered by the District Court on 20 September 1999 and
carried out by the Serbskiy Forensic Psychiatry Institute from
24 November 1999 to 24 December 1999. The commission of experts
found that the applicant suffered from a psychological disorder in
the form of profound dissociative psychopathy, that he had committed
the offence in a deranged state of mind and that at present he had,
inter alia,
a perverted perception of the circumstances relevant to the criminal
case against him and could not give adequate evidence about them. It
was concluded this time that the applicant was in need of placement
in a mental hospital for compulsory treatment.
The
hearing of the case was adjourned on a number of occasions because of
the failure of duly notified witnesses to appear. By decisions of
22 February 2000 and 3 March 2000 the District Court
ordered the district police to bring the
witnesses to the court.
On
10 March 2000 the District Court again dismissed the defence's
request for the applicant's release, stating as follows:
“Having considered the
application [for release], in view of the nature of the crime
committed, the court considers that it cannot be granted.”
On
the same day the District Court rejected the applicant's request to
appear before the court on the ground that ill
detainees were not transported to court from the detention facility
IZ-48/2.
On
3 April 2000 the District Court again dismissed a request by the
applicant's lawyers for the applicant to appear personally at the
hearing in order to give evidence in person and to be taken to the
court for that purpose. The court explained its decision by reasoning
that the statement of a person who had been legally established as
mentally disturbed could not be accepted as evidence. The District
Court also rejected a request by the applicant's lawyers to carry out
an inquiry at the detention facility IZ-48/2 to clarify why they had
refused to transport the applicant to the court.
On
4 April 2000 the District Court examined the case at a public hearing
in the presence of the prosecutor and the applicant's lawyer. At the
hearing the court examined a member of the commission of experts
which had carried out the second in patient psychiatric
examination of the applicant recommending his placement in a mental
hospital. The applicant's lawyers' request to examine an expert
representing the initial opinion, which had found the applicant's
out patient treatment at his place of his residence to be
sufficient, was rejected by the court.
The
court found that at 5 p.m. on 12 October 1998 the applicant had
acquired marijuana for personal consumption and kept it in his
possession until being detained by the police three hours later. Such
actions were punishable under Article 228 § 1 of the
Criminal Code of the Russian Federation. The court noted that,
according to the expert opinion, the applicant had committed the
offence with which he had been charged in a deranged state of mind
and that he was in need of compulsory treatment in a mental hospital.
The court held that the applicant had committed the offence in a
state of diminished responsibility, that he should therefore not be
deemed responsible and that he should be placed in a mental hospital
for compulsory treatment.
The
applicant's lawyers appealed against the decision on the grounds of,
inter alia, the applicant's absence at the trial and the
resulting failure of the court to examine his personality; the
court's refusal to examine the first expert in order to settle the
inconsistency between the two expert opinions in the case; and the
court's failure to explain why preference was given to the second
opinion. The defence referred to certificates issued by the detention
facility IZ-48/2 showing a positive assessment of the applicant's
behaviour and the satisfactory state of his physical and mental
health. They also pointed out that the applicant was a good family
man and that there was no indication that he had ever inflicted harm
on others.
On
25 April 2000 the Moscow City Court dismissed the applicant's
appeal. It stated that it did not find any inconsistency between the
two expert opinions or any reasons for not giving credence to the
second one. The City Court's decision contains no comments in
relation to the applicant's absence at the trial.
On
23 May 2000 the applicant was transferred from the detention facility
IZ-48/2 to the Moscow Psychiatric Hospital no. 7. It appears that he
was later transferred to a psychiatric hospital in Nizhniy Novgorod
from which he was discharged on 22 February 2001.
On
11 February 2003 the Court communicated the present case to the
Government.
On
24 April 2003 the Moscow Public Prosecutor's
Office brought an application for supervisory review of the case
before the Presidium of the Moscow City Court. The prosecutor claimed
that the trial court should have given reasons for ignoring the first
expert opinion and basing its decision to place the applicant in a
mental hospital on the second expert opinion. It was noted that the
applicant's state of health had been essentially the same at the time
of the two psychiatric examinations and that the expert, who was
examined by the court, had failed to explain why the recommended type
of treatment had been changed, that question never being resolved at
the trial.
On
5 June 2003 the Presidium of the Moscow City Court agreed with the
arguments advanced by the prosecutor, quashed the decisions of 4 and
25 April 2000 and remitted the case for a fresh examination by
another composition of judges of the Gagarinskiy District Court of
Moscow.
On
9 July 2003 the District Court held a hearing in the presence of the
prosecutor and the applicant's lawyer. The
court held that the applicant had unlawfully acquired and possessed
drugs but that he should not be held criminally responsible since he
had been in a deranged state of mind. The court further held that no
compulsory medical measures should be imposed on the applicant, who
had already undergone treatment following the court's decision of 4
April 2000.
The
applicant's lawyer appealed, referring, inter
alia, to the applicant's absence at
the first-instance hearing.
On
4 September 2003 the Moscow City Court quashed the decision of 9 July
2003 and discontinued the criminal proceedings
against the applicant pursuant to an Amnesty Act of 26 May
2000.
C. Conditions of detention in the
psychiatric ward of IZ 48/2
The
applicant was kept in the detention facility IZ 48/2
“Butyrskiy”, also referred to as SIZO-2, in Moscow from
16 October 1998 until 23 May 2000.
The
applicant was first held in a cell under the general regime. In
January 1999, after he had undergone a
psychiatric examination at the Serbskiy Forensic Psychiatry
Institute, he was placed in the psychiatric ward of the detention
facility SIZO-2.
1. The applicant's account
(a) Cell no. 404
The
applicant submitted that he had been held in cell no. 404 for the
following approximate periods (give or take two or three days): from
6 January 1999 until 28 April 1999 and from 24 December
1999 until 25 May 2000.
It
measured 32 sq. m. It was three metres high with two
windows of 1.7 by 1.7 metres equipped with shutters, which were
made of metal plates five or six centimetres wide welded at an angle
of forty-five degrees so that inmates could not see out of them and
very little light could come in.
The
cell was dimly lit with one bulb of 40 to 60 watts. The temperature
in winter was about 15 to 16 degrees centigrade.
There
was, however, a hot water supply, and the inmates received soap from
preachers who regularly visited the cell.
A
15- or 20-minute shower was allowed only once a week.
Outdoor
walks in exercise areas on the roof of the prison building did not
exceed 30 to 40 minutes per day.
The
cell contained 24 bunk beds and held up to 26 inmates.
The
applicant and other inmates did not often have individual bedding.
Thus, on his arrival the applicant was given neither individual
bedding nor eating utensils. He went on a hunger strike and lodged a
complaint with the Ministry of Justice. Only four days later
mattresses, bed linen and eating utensils were given to him and his
cell mates.
(b) Cell no. 415
On
28 April 1999 the applicant was put in cell no. 415 where he stayed
until September 1999.
The
cell, measuring 11.25 sq. m, was three metres high and had
one window measuring 2.9 sq. m equipped with metal shutters of
the same type as in cell no. 404. The cell contained six bunk
beds and held between three and five inmates.
The
summer of 1999 in Moscow was extremely hot. While the temperature
outside was 40 degrees centigrade, in the cell it probably reached 50
degrees centigrade. The metal shutters heated up and glowed. To let
air in the prison authorities kept a small opening in the cell door,
designed to pass food to prisoners, open for an hour in the evenings,
but it did not help.
During
the period of the applicant's detention in the cell it was
disinfected only once.
(c) Cell no. 408
At
the beginning of September 1999 the applicant was transferred to cell
no. 408 which was similar to cell no. 404 except that the windows
were equipped, in addition to the metal shutters, with a metal
construction resembling a cage which prevented inmates from
approaching the window.
On
24 November 1999 the applicant was sent to the Serbskiy Forensic
Psychiatry Institute for a second psychiatric examination and then, a
month later, transferred back to cell no. 404.
(d) General observations
Detainees
received extremely poor medical care. For the
whole period of the applicant's confinement in the psychiatric ward
of the Butyrskiy detention facility he was never examined by a
psychiatrist. In May-June 1999 the applicant fell ill with cold. His
repeated requests for medical assistance were left unanswered for
almost a month. Medical help was provided only after he had
threatened to go on hunger strike. The
applicant was twice infected with pediculosis. According to the
report of the Serbskiy Forensic Psychiatry Institute of 25 August
1999, at the time of his detention the applicant was diagnosed as
having scabies. The applicant alleged that his health had
deteriorated as a result of the conditions of his detention.
The
applicant repeatedly observed the beating of mentally ill detainees
by their cell mates or the prison guards.
The
cells were never inspected by the health authority. There was no
proper ventilation. Food was of poor quality and not sufficient.
Approximately
once a month prison guards conducted a search for prohibited objects,
as a result of which many belongings of the detainees were stolen.
The
choice of books was very poor.
2. The Government's account
According
to the Government's observations of 21 June 2004, based on
information provided by the head of the
detention facility SIZO-2 and the health authority, the
applicant was kept in three different cells described as follows:
cell no. 415, from 25 April 1999 to 9 September 1999
(14.8 sq. m, 3.5 m. high, 1 window, 4 bunk beds, a
lavatory, a wash stand, central cold-water supply, natural
ventilation through a window); cell no. 408, from 9 September
1999 to 19 January 2000 (34.9 sq. m, 3.5 m. high,
2 windows, 9 bunk beds, a lavatory, a wash stand, central
cold-water supply, natural ventilation through windows); cell no.
404, from 19 January 2000 to 23 May 2000 (35.6 sq. m,
3.5 m. high, 2 windows, 10 bunk beds, a lavatory, a wash stand,
central cold-water supply, natural ventilation through windows).
According
to the Government's letter of 24 December 2004, from 10 January
1999 until 23 May 2000 the applicant was detained in cell no. 408
and cell no. 415.
The
Government acknowledged that the cells were overcrowded. During the
period of the applicant's detention cell no. 408 contained 22
bunk beds and held up to 35 inmates (according to the letter of 24
December 2004 mentioned above).
Windows
in the cells, measuring 1.1 m. by 1.15 m., were equipped with metal
bars and window panes with wooden frames. The Government submitted
that no metal shutters were installed on them. A reference was made
to a report on the examination of the cells by the health authority
on 11 May 2004 and the following
statement by the head of SIZO-2 dated 11 May
2004:
“... None of the windows in the above-mentioned
cells [cells 404, 408 and 415] has shutters on them.”
The
authorities ran daily inspections of the technical conditions of the
cells in order to ensure, in particular, that the windows had panes
in them and bulbs were changed. Any damage was repaired in the
shortest time possible. The cells were regularly inspected by the
health authority, which checked that the heating, ventilation and
lighting of the cells complied with the established requirements. The
relevant records did not contain any indications of a violation of
the above requirements.
The
applicant had had outdoor walks for at least an hour per day. The
inmates of each cell had walks in turn. There were several exercise
areas on the roof of the building of the detention facility. Their
size varied from 10.4 sq. m to 52.8 sq. m depending on
the number of detainees kept in a cell.
Three
hot meals were served daily. The applicant had also been able to buy
food in the prison shop and receive food parcels from relatives.
As
regards preventive measures against infectious diseases, on admission
to the facility detainees underwent a medical examination and hygiene
treatment. At least once a week they took a shower lasting not less
than 15 minutes and had their bedding changed.
The
applicant and other detainees had received proper medical care,
including specialist treatment. Those infected with scabies were
isolated. During the period of the applicant's detention, no mass
infectious diseases had been recorded and the health authority had
not been notified of any emergency cases of scabies or pediculosis.
The medical personnel of the detention facility had to undertake
daily rounds of the cells. Medical assistance could be provided in
the in patient unit of the facility or, where necessary, in
other medical institutions of the penitentiary system or public
hospitals.
Medical
records of detainees concerning the period of the applicant's
detention were destroyed on the expiry of a maximum period for
keeping them. The records containing information on the number of
detainees kept in the cells at the same time as the applicant had
been destroyed as well, as the statutory one-year period for keeping
them had expired.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure of 1960 (in
force at the material time)
1. Detention on remand
Article 11 (1). Personal inviolability
“No one may be arrested otherwise than on the
basis of a judicial decision or a prosecutor's
order.”
Article 89 (1). Application of preventive measures
“When there are sufficient grounds for believing
that an accused person may evade an inquiry, preliminary
investigation or trial or will obstruct the establishment of the
truth in a criminal case or will engage in criminal activity, as well
as in order to secure the execution of a sentence, the person
conducting the inquiry, the investigator, the prosecutor and the
court may apply one of the following preventive measures in respect
of the accused: a written undertaking not to leave a specified place,
a personal guarantee or a guarantee by a public organisation, or
placement in custody.”
Article 92. Order and decision on the application of
a preventive measure
“On the application of a preventive measure a
person conducting an inquiry, an investigator and a prosecutor shall
make a reasoned order, and a court shall give a reasoned decision
specifying the criminal offence which the individual concerned is
suspected of having committed, as well as the grounds for choosing
the preventive measure applied. The order or decision shall be
notified to the person concerned, to whom at the same time the
procedure for appealing against the application of the preventive
measure shall be explained.
A copy of the order or decision on the application of
the preventive measure shall be immediately handed to the person
concerned.”
Article 96. Placement in custody
“Placement in custody as a preventive measure
shall be done in accordance with the requirements of Article 11 of
this Code concerning criminal offences for which the law prescribes a
penalty in the form of deprivation of freedom for a period of more
than one year. In exceptional cases, this preventive measure may be
applied in criminal matters for which a penalty in the form of
deprivation of freedom for a period of less than one year is
prescribed by law.”
Article 97. Time-limits for pre-trial detention
“A period of detention during the investigation of
offences in criminal cases may not last longer than two months. This
time-limit may be extended by up to three months by a district
or municipal prosecutor ... if it is impossible to complete the
investigation and there are no grounds for altering the preventive
measure. A further extension of up to six months from the day of
placement in custody may be effected only in cases of special
complexity by a prosecutor of a constituent part of the Russian
Federation ...
An extension of the time-limit for such detention beyond
six months shall be permissible in exceptional cases and solely in
respect of persons accused of committing serious or very serious
criminal offences. Such an extension shall be effected by a deputy of
the Prosecutor General of the Russian Federation (up to one year) and
by the Prosecutor General of the Russian Federation (up to 18
months).
No further extension of the time-limit shall be
permissible, and the accused held in custody shall be releasable
immediately.
The documents of a completed investigation in a criminal
case shall be produced for consultation by the accused and his
defence counsel not later than one month before the expiry of the
maximum time-limit for remand in custody, as prescribed in the second
paragraph of the present Article. In the event of the accused being
unable to consult the case documents before the expiry of the maximum
time-limit for remand in custody, the Prosecutor General of the
Russian Federation, [or] a prosecutor of a constituent part of the
Russian Federation ... may, not later than five days before the
expiry of the maximum time-limit for remand in custody, apply to the
judge of the “oblast”, “krai” or comparable
court for an extension of this time-limit.
Not later than five days from the day of receipt of the
application, the judge must take one of the following decisions:
1. to extend the time-limit for remand in
custody until the accused and his counsel have consulted the case
documents and the case has been referred to the trial court by the
prosecutor but, anyway, for not more than six months;
2. to reject the prosecutor's application and
to release the person concerned from custody.
Under the same procedure, the time-limit for remand in
custody may be extended, if necessary, to accede to a request by the
accused or his counsel to pursue the preliminary investigation
further.
If a court remits a case for further investigation when
the time-limit for the accused's remand
in custody has expired, but the circumstances of the case preclude
any modification of the custody measure, the time-limit for the
remand in custody shall be extended by the prosecutor supervising the
investigation for up to one month from the date on which the case
reaches him. Any further extension of the time-limit shall take
account of the time spent by the accused in custody before the
referral of the case to court, and shall be effected in the manner
and within the limits prescribed in the first and second paragraphs
of this Article.
An extension of the time-limit for remand in custody in
accordance with the present Article is subject to appeal to a court
and to judicial review of its legality and justification under the
procedure provided for in Articles 220¹ and 220² of the
present Code.”
Article 101. Cancellation or modification of a
preventive measure
“A preventive measure shall be cancelled when it
ceases to be necessary, or else changed into a stricter or a milder
one if the circumstances of the case so require. The cancellation or
modification of a preventive measure shall be effected by a reasoned
order of the person carrying out the inquiry, the investigator or the
prosecutor, or by a reasoned court decision after the case has been
transferred to a court.
The cancellation or modification, by the person
conducting the inquiry or by the investigator, of a preventive
measure chosen on the prosecutor's instructions shall be permissible
only with the prosecutor's approval.”
Article 223-1. Setting a date for a court hearing
“If the accused is kept in custody, the question
of setting a date for a court hearing must be decided no later than
14 days from the seizure of the court.”
Article 239. Time-limits
for examination of the case
“The examination of a case before the court must
start no later than 14 days from the fixing of a hearing date.”
2. Proceedings concerning the commission
of offences by persons of unsound mind
Article 407. Preparatory actions for court hearing
“... A trial court may summon to a hearing a
person whose case is being examined unless that person's illness
prevents him from appearing before the court. ...”
Article 409. Determination of case by
court
“A trial court determines a case by
its decision ... When rendering the decision the court shall
determine the following questions:
1. whether an act posing a danger to the
public and punishable under the criminal law has occurred;
2. whether the act has been committed by the
person whose criminal case is being examined;
3. whether the person has committed the act
in a deranged state of mind;
4. whether the person, after committing the
offence, has developed a mental illness which makes it impossible for
him to be conscious of or control his actions and whether such
illness represents a temporary mental disorder merely requiring an
adjournment of the proceedings;
5. whether a compulsory medical measure
should be applied and which specific measure should be applied.”
Article 410. Court decision
“Having found it established that an act posing a
danger to the public and punishable under the criminal law has been
committed by a person in a deranged state of mind, ... the court
shall render a decision ... by which the person is deemed not to be
criminally responsible ... and is ordered to undergo a specific
compulsory medical measure, or [the court shall render a decision by
which] the proceedings are terminated and the person is not ordered
to undergo any compulsory medical measure where that person does not
pose any danger to the public on account of the offence he has
committed or his state of health, which does not call for compulsory
treatment. ...”
B. Criminal Code of 1996
Article 99. Compulsory medical measures
“1. The court may impose the following
compulsory medical measures:
a) out patient compulsory psychiatric
observation and treatment;
b) compulsory psychiatric treatment in a
mental hospital of a common type;
c) compulsory psychiatric treatment in a
mental hospital of a special type;
d) compulsory psychiatric treatment in a
mental hospital of a special type under close supervision. ...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The
relevant extracts from the General Reports by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
“46. Overcrowding is an issue of direct
relevance to the CPT's mandate. All the services and activities
within a prison will be adversely affected if it is required to cater
for more prisoners than it was designed to accommodate; the overall
quality of life in the establishment will be lowered, perhaps
significantly. Moreover, the level of overcrowding in a prison, or in
a particular part of it, might be such as to be in itself inhuman or
degrading from a physical standpoint.
47. A satisfactory programme of activities
(work, education, sport, etc.) is of crucial importance for the
well-being of prisoners... [P]risoners cannot simply be left to
languish for weeks, possibly months, locked up in their cells, and
this regardless of how good material conditions might be within the
cells. The CPT considers that one should aim at ensuring that
prisoners in remand establishments are able to spend a reasonable
part of the day (8 hours or more) outside their cells, engaged in
purposeful activity of a varied nature...
48. Specific mention should be made of
outdoor exercise. The requirement that prisoners be allowed at least
one hour of exercise in the open air every day is widely accepted as
a basic safeguard... It is also axiomatic that outdoor exercise
facilities should be reasonably spacious...
49. Ready access to proper toilet facilities
and the maintenance of good standards of hygiene are essential
components of a humane environment...
50. The CPT would add that it is particularly
concerned when it finds a combination of overcrowding, poor regime
activities and inadequate access to toilet/washing facilities in the
same establishment. The cumulative effect of such conditions can
prove extremely detrimental to prisoners.
51. It is also very important for prisoners
to maintain reasonably good contact with the outside world. Above
all, a prisoner must be given the means of safeguarding his
relationships with his family and close friends. The guiding
principle should be the promotion of contact with the outside world;
any limitations upon such contact should be based exclusively on
security concerns of an appreciable nature or resource
considerations...”
Extracts from the 7th General Report [CPT/Inf (97)
10]
“13. As the CPT pointed out in its 2nd
General Report, prison overcrowding is an issue of direct relevance
to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An
overcrowded prison entails cramped and unhygienic accommodation; a
constant lack of privacy (even when performing such basic tasks as
using a sanitary facility); reduced out-of-cell activities, due to
demand outstripping the staff and facilities available; overburdened
health-care services; increased tension and hence more violence
between prisoners and between prisoners and staff. This list is far
from exhaustive.
The CPT has been led to conclude on more than one
occasion that the adverse effects of overcrowding have resulted in
inhuman and degrading conditions of detention...”
Extracts from the 11th General Report [CPT/Inf (2001)
16]
“28. The phenomenon of prison
overcrowding continues to blight penitentiary systems across Europe
and seriously undermines attempts to improve conditions of detention.
The negative effects of prison overcrowding have already been
highlighted in previous General Reports...
29. In a number of countries visited by the
CPT, particularly in central and eastern Europe, inmate accommodation
often consists of large capacity dormitories which contain all or
most of the facilities used by prisoners on a daily basis, such as
sleeping and living areas as well as sanitary facilities. The CPT has
objections to the very principle of such accommodation arrangements
in closed prisons and those objections are reinforced when, as is
frequently the case, the dormitories in question are found to hold
prisoners under extremely cramped and insalubrious conditions...
Large-capacity dormitories inevitably imply a lack of privacy for
prisoners in their everyday lives... All these problems are
exacerbated when the numbers held go beyond a reasonable occupancy
level; further, in such a situation the excessive burden on communal
facilities such as washbasins or lavatories and the insufficient
ventilation for so many persons will often lead to deplorable
conditions.
30. The CPT frequently encounters devices,
such as metal shutters, slats, or plates fitted to cell windows,
which deprive prisoners of access to natural light and prevent fresh
air from entering the accommodation. They are a particularly common
feature of establishments holding pre-trial prisoners. The CPT fully
accepts that specific security measures designed to prevent the risk
of collusion and/or criminal activities may well be required in
respect of certain prisoners... [E]ven when such measures are
required, they should never involve depriving the prisoners concerned
of natural light and fresh air. The latter are basic elements of life
which every prisoner is entitled to enjoy...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained about his conditions of detention in the
psychiatric ward of the detention facility IZ 48/2 “Butyrskiy”.
He relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government acknowledged that the detention facility had been
overcrowded. They submitted that a series of legislative, financial
and other measures had been carried out in order to bring conditions
of detention into compliance with domestic and international
standards. As a result, at present the number of persons detained in
the detention facility IZ 48/2 was half
the number in 1998. As of 11 May 2004 there had been 308
detainees in the psychiatric ward of the
detention facility in issue, which had a limit of 275 persons.
The
Government pointed out that the authorities had had no intention of
subjecting the applicant to inhuman or degrading treatment or of
harming his health.
The
applicant maintained his initial complaint.
A. Principles established by the Court's case-law
As
the Court has held on many occasions, 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 (Labita v. Italy, judgment of 6 April 2000,
Reports of Judgments and Decisions 2000-IV, § 119).
However, to fall under Article 3, ill treatment must attain a
minimum level of severity. The assessment of this minimum level of
severity 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 (Valašinas v. Lithuania, no. 44558/98, §§
100-101, ECHR 2001 VIII).
The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond the inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment. Under the Convention provision in question
the State must ensure that a person is detained in conditions which
are compatible with respect for his 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 (Valašinas, cited above, § 102;
Kudła v. Poland [GC], no. 30210/96, § 94, ECHR
2000 XI). When assessing conditions of detention, account has to
be taken of their cumulative effects as well as the applicant's
specific allegations (Dougoz v. Greece, no. 40907/98, §
46, ECHR 2001 II).
B. Application of the above principles to the present
case
In
the present case the applicant was held in the
psychiatric ward of the detention facility IZ 48/2 “Butyrskiy”
in Moscow, also referred to as SIZO 2. The Court assumes from
the parties' submissions that the period of the applicant's detention
in the above facility lasted from 10 January 1999 until 23 May
2000, excluding one month from 24 November to 24 December 1999
when he was at the Serbskiy Forensic Psychiatry
Institute, that is, a total of a year, three months and
thirteen days (see paragraphs 20, 38, 46, 50, 51, 57 and 58 above).
As
regards the time spent in different cells, the applicant's
submissions indicate that he spent about eleven
and a half months in cells nos. 404 and
408, which both measured over 30 sq. m, and about four
months in cell no. 415 measuring less than 15 sq. m. The
Government first asserted that the applicant had been held in a
smaller cell, no. 415, for four and a half months and in two bigger
cells, nos. 408 and 404, for the rest of the time. However, no
information was given in relation to the period between January and
April 1999 (see paragraph 57 above). Later, the Government claimed
that for the whole period of his confinement in the psychiatric ward
the applicant had been held in cells 408 and 415. No information on
how long he was held in each was provided (see paragraph 58 above).
Having
regard to the above information of the parties, the Court will
proceed on the assumption that the applicant was held in a smaller
cell for about four and a half months and in a larger cell for eleven
months.
The
Court will first examine the conditions of detention in the bigger
cell. The cell was 3 to 3.5 metres high and measured
32 sq. m, according to the applicant and 34.9 or 35.6
sq. m, according to the Government. Given the number of bunk
beds, it was designed for 24 persons according to the applicant
and 22 persons according to the Government (see paragraphs 44 and 59
above). It actually held up to 26 inmates according to the applicant
and up to 35 inmates according to the Government (see paragraphs 44
and 59 above). The above numbers suggest that at any given time there
was between 1 and 1.6 sq. m of space per inmate in the
applicant's cell and that he did not always
have a separate bed. Save for 30 to 40 minutes, according to the
applicant, or one hour, according to the Government, of daily outdoor
walks in exercise areas on the roof of the prison building, the
applicant was confined to his cell for all the time.
The
applicant's situation is comparable with that in the Kalashnikov
case, in which the applicant had been confined to a space
measuring 0.9 1.9 sq. m. In that case the Court held
that such a severe overcrowding raised in itself an issue under
Article 3 of the Convention (Kalashnikov v. Russia,
no. 47095/99, §§ 96-97, ECHR 2002 VI). In the
Peers case even a much bigger cell – namely that of
7 sq. m for two inmates – was noted as a relevant
aspect for finding a violation of Article 3, albeit in that case the
space factor was coupled with the established lack of ventilation and
lighting (Peers v. Greece, no. 28524/95, §§ 70-72,
ECHR 2001 III). By contrast, in some other cases no violation of
Article 3 was found, as the restricted space in the sleeping
facilities was compensated by the freedom of movement enjoyed by the
detainees during the day-time (Valašinas, cited above,
§§ 103 and 107; Nurmagomedov v. Russia (dec.), no.
30138/02, 16 September 2004).
Hence,
as in those cases, the Court considers the extreme lack of space to
be the focal point for its analysis of compatibility of the
conditions of the applicant's detention with Article 3.
The
Court observes further that as regards the applicant's medical care
and other conditions of his detention, including heating, artificial
lighting and ventilation, for the most part neither
party submitted evidence which could satisfy the Court “beyond
reasonable doubt” in whether they were acceptable from the
point of view of Article 3. What can be taken into account, however,
is that the applicant appears to have been allowed
to take a shower once a week (see paragraphs 42 and 64 above) and
that he became infected with scabies (see paragraph 52 above). The
Court also notes the applicant's assertion that, in addition to the
usual bars, there were metal shutters on
the windows, which were constructed so that
inmates could not see out of them and very little light could come in
(see paragraphs 39 and 50 above). The Government did not initially
contest this allegation. After the admissibility decision in the case
they submitted that no metal shutters had been installed on
the windows. A reference was made to a report on the inspection of
the cells by the health authority on 11 May
2004 and the following statement by the head of SIZO 2
dated 11 May 2004:
“... None of the windows in the above-mentioned
cells [cells 404, 408 and 415] has shutters on them.”
The
applicant submitted that these metal shutters had been removed
throughout the “Butyrskiy” detention facility at the end
of 2002 and that the Government's information reflected the situation
as of 2004. The Government did not object in reply.
The
Court accepts that in the present case there is no indication that
there was a positive intention of humiliating or debasing the
applicant. However, although the question whether the purpose of the
treatment was to humiliate or debase the victim is a factor to be
taken into account, the absence of any such purpose cannot exclude a
finding of violation of Article 3 (see Peers, cited
above).
The
Court considers that the conditions of detention, which the applicant
had to endure for at least eleven months, must have undermined the
applicant's human dignity and aroused in him feelings of humiliation
and debasement. Whilst the Court notes with satisfaction that at
present the number of persons detained in the “Butyrskiy”
detention facility is half that in 1998 as a
result of various measures aimed at bringing the conditions of
detention into compliance with domestic and international standards,
this does not detract from the wholly unacceptable conditions which
the applicant had clearly had to endure at the material time.
The
Court does not find it necessary to examine
further the conditions of the applicant's detention in cell no. 415
as the above considerations are sufficient to find a violation of
Article 3 of the Convention.
In
the light of the above, the Court finds that the applicant's
conditions of detention, in particular the severe overcrowding and
its detrimental effect on the applicant's well being, combined
with the length of the period during which the applicant was detained
in such conditions, amounted to degrading treatment.
Accordingly,
there has been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his detention on remand had been excessive.
He alleged a violation of Article 5 § 3 of the
Convention, the relevant part of which provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government denied this violation.
A. Period to be taken into consideration
The
Court reiterates that, in determining the length of detention
pending trial under Article 5 § 3 of the Convention, the period
to be taken into consideration begins on the day the accused is taken
into custody under Article 5 § 1 (c) and ends on the day when
the charge is determined, even if only by a court of first instance
(see, among other authorities, Wemhoff v. Germany, judgment of
27 June 1968, Series A no. 7, p. 23, § 9, and Labita, cited
above, § 147).
The
Court consequently finds that the period to be taken into
consideration in the present case
began on 13 October 1998, when the applicant was detained on
suspicion of having committed the offence, and ended on
4 April 2000, when the Gagarinskiy District Court of Moscow
determined the charge against him. The period in issue therefore
amounted to a year, five months and twenty-three days.
B. Reasonableness of the length of detention
1. Principles established by the Court's case-law
The
Court reiterates that the question of whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
examined in each case according to its special 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 laid down in Article 5 of the
Convention (see, among other authorities, Kudla, cited above,
§ 110).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5, and must set them out in their decisions
on the applications for release. It is essentially on the basis of
the reasons given in these decisions, and any well-documented facts
stated by the applicant in his appeals, that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see, for example, Labita, cited above, § 152).
Arguments for and against release must not be “general and
abstract” (see Clooth v. Belgium, judgment of
12 December 1991, Series A no. 225, p. 16, § 44).
The
persistence of a reasonable suspicion that the person arrested 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. The Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports 1996 VI, pp. 2399-00, § 74,
and I.A. v. France, judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102).
2. Application of the above principles to the present
case
(a) Grounds for detention
The
Court observes that in the instant case the reasons for the
applicant's detention on 13 October 1998 referred to by the
authorities were the suppression of a crime of which the applicant
was suspected and the risk of his absconding (see paragraph 10
above). The latter factor, together with the applicant's personality
and the danger posed to the public by the crime with which he had
been charged, underpinned the decision to place the applicant in
detention on remand on 15 October 1998 (see paragraph 12 above).
Subsequently the Gagarinskiy District Court of Moscow, in refusing to
release the applicant, relied on “the nature of the crime
committed” by him (see paragraph 22 above) by which it appears
the District Court meant the seriousness of the charge against the
applicant.
The
Court reiterates first that the danger of absconding cannot be gauged
solely on the basis of the severity of the sentence risked; it must
be assessed with reference to a number of other relevant factors
which may either confirm the existence of a danger of absconding or
make it appear so slight that it cannot justify detention pending
trial (see Tomasi v. France, judgment of 27 August 1992,
Series A no. 241 A, p. 37, § 98). In the present case the
investigating authority failed to mention any factual circumstances
capable of showing the existence of the danger of the applicant's
absconding. Nor did it explain in its decision what peculiarities of
the applicant's personality warranted, in its view, his detention on
remand.
As
regards the danger posed to the public by the crime with which the
applicant had been charged, namely the acquisition of drugs for
personal consumption and possession, even assuming that there was a
risk of prejudice to public order at the beginning, which does not
appear in itself a persuasive consideration in the circumstances of
the present case, it must have disappeared after a certain time (see
Tomasi, cited above, p. 36, § 91). This reason
undoubtedly did not suffice to justify the applicant's detention for
more than a year.
The
Court considers further that the reference by the District Court to
the seriousness of the alleged offence as the only ground for the
applicant's continued detention after he had spent a year and almost
five months in custody could not justify such a long period of
pre-trial detention (see, for example, Scott, cited above, p.
2401, § 78).
The
Court accordingly concludes that the reasons relied on by the
investigating authority and the court in their decisions were not
sufficient to justify the applicant's being held in detention for the
period in question.
(b) Conduct of the proceedings
According
to the applicant, the case was not at all complex, involving only one
charge against him. Thus, the investigation in the case had been
completed as early as 10 February 1999. The two in patient
psychiatric examinations had lasted not more than two months. The
adjournment of hearings in the case had not been attributable to the
applicant's representatives as they had not been informed of the
hearings concerned. As regards the hearings adjourned on account of
the failure of witnesses to appear, no proper steps had been taken to
execute the court's decisions that they be brought to the court.
The
Government acknowledged that, when ordering the applicant's
second psychiatric examination on 28 June 1999,
the court had failed to give reasons for its decision. The
Government further asserted that the length of the applicant's
detention had been partially due to the applicant's psychiatric
examinations. The
Government also submitted that the hearings in the case had been
repeatedly adjourned because of the failure of the applicant's
representatives and witnesses to appear.
The
Court observes that it took the police four months to investigate the
case. During that time the applicant underwent a psychiatric
examination which found that he had committed the crime imputed to
him in a deranged state of mind and that he did not need to be placed
in a mental asylum, the out patient psychiatric treatment being
sufficient for his diagnosis. The Court observes further that on
28 June 1999, after four
months had elapsed since the case was transferred to it, the
Gagarinskiy District Court of Moscow, without seeing the applicant
and without giving the defence a chance to object, decided to
order a further psychiatric examination of the applicant. No reasons
were advanced for such a decision. The second in-patient psychiatric
examination was carried out four months after the above decision had
taken effect and took a month. Three more months elapsed before the
court examined the case. The Court notes that no evidence was
submitted by the Government on which to contest the applicant's
statements that his representatives had not been informed of the
hearings which were adjourned on the ground of their failure to
appear and that no steps had been taken to bring before the court the
witnesses who had repeatedly failed to appear, thus protracting the
proceedings.
The
Court concludes that the length of the proceedings is attributable
neither to the complexity of the case nor to the conduct of the
applicant but to the lack of diligence and expedition on the part of
the Gagarinskiy District Court of Moscow.
(c) Conclusion
In
view of the above considerations the Court finds that there has been
a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that, despite his numerous requests, he had
never appeared before the Gagarinskiy District Court of Moscow. He
alleged a violation of Article 6 § 1 of the Convention.
The
Court considers that this complaint falls to be examined under
Article 6 §§ 1 and 3 (c) of the Convention, which, insofar
as relevant, provides:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to
defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require; ...”
A. The parties' submissions
The
applicant submitted that the trial court's reference to the refusal
of the detention facility IZ 48/2 to bring him to court had not
been based on true facts. Another reason advanced by the court for
rejecting his request to appear at the hearing had been his criminal
incapacity, which had allegedly made it impossible to accept his
testimony as evidence. The applicant argued that such reasoning ran
counter to the domestic law and that it had never been established
before the decision of the Gagarinskiy District Court of Moscow of
4 April 2000 that he had been mentally disturbed or that he
could not be held criminally responsible on account of his mental
illness. He contended that it had been for the District Court to
decide, inter alia,
on his mental condition on the basis of all the evidence in the case
and not merely the expert opinion. The applicant further pointed out
that the certificates issued by the detention facility IZ-48/2
had given a positive assessment of his behaviour and stated that his
physical and mental health was satisfactory.
The
Government submitted that the decision of the Gagarinskiy District
Court of Moscow not to summon the applicant had been based on the
expert opinion according to which the applicant had not been
conscious of, and could not control, his actions or perceive the
circumstances relevant to the case and give evidence on them. The
Government stated that the above decision of the District Court had
been in compliance with Article 407 of the Code of Criminal
Procedure, which left the question of the appearance of a mentally
ill offender before the court to the latter's discretion. Such a
person enjoyed lesser procedural rights than an ordinary accused. The
Government further argued that the applicant's absence from the court
hearings had not adversely affected his rights, since his lawyers had
been present.
B. The Court's assessment
The
Court reiterates that it flows from the notion of a fair trial that a
person charged with a criminal offence should, as a general
principle, be entitled to be present and participate effectively in
the first-instance hearing (see Colozza v. Italy, judgment of
12 February 1985, Series A no. 89, pp. 14-15, §§ 27
and 29). In the present case this requirement was not satisfied since
the District Court decided the applicant's case in his absence. It
should be noted that he was not present at the appeal hearing either.
The Court will next consider whether the instant case involved any
circumstances which were capable of justifying a complete and
irreparable loss of the entitlement to take part in the hearing.
The
Court notes that it is not here concerned with an accused who
expressly waived his right to appear at the hearing. On the contrary,
the applicant, who was in custody, and his lawyers filed requests
with the District Court for him to appear at the hearings in person.
The requests were rejected because the detention facility, in which
the applicant was held, did not allegedly transport ill detainees to
court and, on another occasion, because the testimony of a mentally
disturbed person could not be accepted as evidence (see paragraphs 23
and 24 above).
The
Court recalls that the State is under an obligation to secure the
attendance of an accused who is in custody (see, with necessary
changes made, Goddi v. Italy, judgment of 9 April 1984, Series
A no. 76, p. 11, § 29). The Court reiterates further that
the trial court may exceptionally continue hearings where the accused
is absent on account of illness, provided that his or her interests
are sufficiently protected (see Ninn-Hansen v.
Denmark (dec.), no. 28972/95, p. 351,
ECHR 1999 V). However, where
proceedings involve an assessment of personality and character of the
accused and his state of mind at the time of the offence and where
their outcome could be of major detriment to him, it is essential to
the fairness of the proceedings that he be present at the hearing and
afforded the opportunity to participate in it together with his
counsel (see Kremzow v. Austria, judgment of 21 September
1993, Series A no. 268 B, p. 45, § 67; Pobornikoff v.
Austria, no. 28501/95, § 31, 3 October 2000, and Zana
v. Turkey, judgment of 25 November 1997, Reports 1997 VII,
p. 2551, §§ 71-73).
In
the present case the authorities failed to take any steps to secure
the applicant's attendance at the hearings. There is no indication
that the applicant displayed any disturbed behaviour or that his
physical and mental condition otherwise precluded him from appearing
before the court. The District Court's argument that the applicant's
presence at the hearing was not required in that the testimony of the
applicant as a mentally disturbed person could not be accepted as
evidence is striking given that it was for the District Court to
determine for the first time whether the applicant had committed the
offence in a deranged state of mind and assess whether his mental
condition required any compulsory medical care.
As
regards the scope of the trial court's powers in this case, the Court
further observes that the District Court determined the criminal
charge against the applicant, found that he could not be held
responsible because he was suffering from a mental illness and
ordered his placement in a mental hospital.
As
regards the latter, the Court notes that the District Court had
before it two psychiatric opinions drawn up by the same forensic
institution. Although concurring in essence on the applicant's
diagnosis, they differed on the measures it necessitated. The first
opinion asserted that there was no need to place the applicant in a
mental asylum and that psychiatric treatment as an out patient
would suffice, while the second opinion claimed that the applicant's
confinement in a mental asylum was necessary. The Court considers
that such an inconsistency, which had an impact on the outcome of the
proceedings and, ultimately, in the present case, on the applicant's
liberty, made the question of the applicant's participation in the
hearing particularly important.
In
view of what was at stake for the applicant the District Court could
not, if the trial was to be fair, determine his case without a direct
assessment of the applicant's evidence, and the presence of the
applicant's lawyer could not compensate for his absence.
In
view of the above considerations the Court finds a breach of Article
6 §§ 1 and 3 (c) of the Convention.
IV. 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. Non-pecuniary damage
The
applicant claimed 100,000 euros (“EUR”) in respect of
non pecuniary damage. He underlined the point that he had spent
a long time in the inhuman conditions of the detention facility
SIZO-2 and then, as a result of unfair court proceedings, had been
confined in a mental hospital while not being in need of such medical
treatment. During that time his health had deteriorated, he had been
unable to work and maintain his family and his relatives had incurred
substantial expenses in providing him with food and other living
essentials for several years. He had suffered emotional distress as a
consequence of extensive violations of the domestic and international
law in the course of the proceedings against him.
The
Government submitted first that the finding of a violation would
constitute sufficient satisfaction. They further argued that in any
event the claim was excessive, unreasonable and lacking in
substantiation, in which case a symbolic amount would be equitable.
The
Court observes that some forms of non-pecuniary damage, including
emotional distress, by their very nature cannot always be the object
of concrete proof (see Abdulaziz, Cabales and Balkandali v. the
United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 44,
§ 96). This does not prevent the Court from making an award if
it considers that it is reasonable to assume that an applicant has
suffered injury requiring financial compensation. In the present case
the Court considers that the applicant's prolonged detention on
remand in conditions amounting to degrading treatment and disregard
for his right to appear before the trial court in criminal
proceedings brought against him must have caused him distress,
frustration and uncertainty which cannot be compensated solely by the
finding of a violation.
Deciding
on an equitable basis, the Court awards the applicant EUR 5,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant claimed 14,775 US dollars (“USD”) in respect of
his representation by Mr A.A. Rekant, a
member of Human Rights NGO Комитет
за
Гражданские
Права,
in the domestic proceedings and the proceedings before this
Court and in respect of translation costs. The applicant further
claimed USD 644, 2,694.6 Russian roubles (“RUR”) and
791.34 Ukrainian hryvnas (“UAH”) for travel expenses
relating to Mr A.A. Rekant's visits to Odessa, where the
applicant was detained, for a meeting with him. Lastly, he claimed
RUR 3,561.86 for postage and telephone expenses.
The
Government argued that the expenses were not properly substantiated:
for instance postal receipts did not bear the payer's name.
The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that that they
were actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, for example,
Nilsen and Johnsen v. Norway [GC], no. 23118/93, §
43, ECHR 1999-VIII).
Having
regard to the material submitted and
deciding on an equitable basis, the Court awards the applicant
EUR 1,500 for legal costs, less EUR 872
received by way of legal aid from the Council of Europe, plus
any tax that may be chargeable on that amount. As regards the
remaining costs and expenses claimed, it finds that RUR 4,519.99
and UAH 620.36 were shown to have been actually and necessarily
incurred, which amounts it awards the applicant, plus any tax that
may be chargeable on those amounts.
C. Default interest
The
Court considers it appropriate that the default interest 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
Holds that there has been a violation of
Article 3 of the Convention;
Holds that there has been a violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR 5,000
(five thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement;
(ii) EUR 628
(six hundred twenty-eight euros) in respect of legal costs, to be
converted into Russian roubles at the rate applicable at the date of
settlement;
(iii) RUR 4,519.99
(four thousand five hundred nineteen Russian roubles ninety nine
kopecks) and UAH 620.36 (six hundred twenty Ukrainian hryvnas
thirty six kopiykas) in respect of other expenses, the latter amount
to be converted into Russian roubles at the rate applicable at the
date of settlement;
(iv) any
tax that may be chargeable on the above amounts;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 October 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
