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LIND v. RUSSIA - 25664/05 [2007] ECHR 1055 (6 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1055.html
Cite as:
[2007] ECHR 1055,
(2010) 50 EHRR 5
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FIRST
SECTION
CASE OF LIND v. RUSSIA
(Application
no. 25664/05)
JUDGMENT
STRASBOURG
6 December
2007
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 Lind v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 25664/05) 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 and Dutch national, Mr Vladimir
Yaapovich Lind (Wladimir Lind, “the applicant”), on 14
June 2005.
The
applicant was represented before the Court by Mr D. Agranovskiy
and Ms E. Liptser, lawyers practising in Moscow. The Russian
Government (“the Government”) were represented by Mr P.
Laptev, Representative of the Russian Federation at the European
Court of Human Rights.
The
applicant complained, in particular, about the allegedly inhuman
conditions and excessive length of his detention, and the refusal of
leave to visit his father on his deathbed or attend a farewell
ceremony for him.
On
14 October 2005 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
The Dutch Government, having been informed by the
Registrar of the right to intervene (Article 36 § 1 of the
Convention), did not avail themselves of this right.
The Government objected to the joint examination of the
admissibility and merits of the application. Having examined the
Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1981 and lives in St Petersburg.
A. Background information
The
applicant is a member of the National Bolsheviks Party.
On
14 December 2004 a group of about forty members of the National
Bolsheviks Party occupied the waiting area of the President's
administration building in Moscow and locked themselves in an office
on the ground floor.
They
asked for a meeting with the President, the deputy head of the
President's administration Mr Surkov, and the President's economic
advisor Mr Illarionov. Through the windows they distributed leaflets
with a printed letter to the President that listed his ten alleged
failures to comply with the Constitution and contained a call for his
resignation.
The
intruders stayed in the office for one hour and a half until the
police broke down the blocked door. They did not offer any other
resistance to the authorities.
B. The applicant's arrest and prosecution
On
16 December 2004 the Khamovnicheskiy District Court of Moscow ordered
the applicant's detention on the ground that he was suspected of a
particularly serious criminal offence, had no permanent residence in
Moscow and was a Dutch national. It considered that there was a risk
of his re-offending, absconding, interfering with the investigation
or intimidating witnesses.
The
applicant appealed, complaining that the District Court had not cited
any facts to justify the necessity of ordering his detention. On
3 February 2005 the Moscow City Court upheld the detention order
on appeal, finding that it had been lawful and justified.
On
21 December 2004 the applicant was charged with an attempted violent
overthrow of State power (Article 278 of the Criminal Code) and
intentional destruction and degradation of others' property in public
places (Articles 167 § 2 and 214).
On
8 February 2005 the Zamoskvoretskiy District Court of Moscow extended
the applicant's detention until 14 April 2005, referring to the
gravity of the charge. The applicant had no permanent residence in
Moscow and there were reasons to believe that he might abscond or
interfere with the investigation.
The
applicant's counsel appealed. He asked the court to release the
applicant, taking into account that he had no criminal record, had
positive references and was of frail health. On 9 March 2005 the
Moscow City Court upheld the extension order on appeal.
On
16 February 2005 the applicant's charge was amended to that of
participation in mass disorders, an offence under Article 212 §
2 of the Criminal Code.
On
an unspecified date the prosecutor requested the court to extend the
applicant's detention until 14 August 2005. On 14 April 2005 the
Zamoskvoretskiy District Court of Moscow extended the applicant's
detention until 14 July 2005 for the following reasons:
“There are no reasons to vary the preventive
measure. Taking into account the gravity of the charges and [the
applicant's] individual situation, the court considers that there are
sufficient indications that [the applicant], once released, might
abscond.
At the same time, bearing in mind that the parties to
the criminal proceedings have already started studying the case file,
the extension asked for by the prosecution appears to be excessive
and must be limited to three months. This period will be sufficient
for all parties to the proceedings to study effectively the entire
case file.”
On
14 April 2005 the applicant's counsel appealed. He asked the court to
apply a more lenient preventive measure, taking into account that the
applicant had no criminal record, had a permanent place of residence
in Russia, studied at a university and suffered from a kidney
disease. He also submitted that the applicant did not need so much
time to study the case file. At the appeal hearing before the Moscow
City Court the applicant confirmed that he had finished studying the
case file.
On
11 May 2005 the Moscow City Court upheld the decision of 14 April
2005, finding that it had been lawful, sufficiently reasoned and
justified.
On
7 June 2005 the investigation was completed and thirty-nine persons,
including the applicant, were committed for trial.
On
20 June 2005 the Tverskoy District Court of Moscow scheduled the
preliminary hearing for 30 June 2005 and held that all the defendants
should remain in custody.
On
30 June 2005 the Tverskoy District Court held a preliminary hearing.
It rejected the defendants' requests to release them, citing the
gravity of the charges against them and the risk of their absconding
or obstructing justice.
The
applicant's counsel appealed. He repeated the arguments advanced in
the grounds of appeal of 14 April 2005 and added that the applicant's
father, Mr Jaap Jan Lind, a Dutch national and the former Governor of
the New Guinea, was dying of cancer in the Netherlands. On 17 August
2005 the Moscow City Court upheld the decision of 30 June 2005
on appeal, finding that it had been lawful, well-reasoned and
justified.
The
trial started on 8 July 2005.
On
14 July 2005 the applicant lodged an application for release,
referring to his frail health and a need for a medical examination.
On 27 July 2005 the Tverskoy District Court rejected the
request. It held that the applicant's detention was lawful and
justified. The applicant had not submitted medical certificates
showing that his state of health was incompatible with custody. On 5
October 2005 the Moscow City Court upheld the decision on appeal.
On 10 August 2005 the applicant's counsel filed a
further application for release. He submitted medical certificates,
confirming the applicant's and his father's diseases. A human-rights
activist, Mr Ponomarev, offered his personal guarantee that the
applicant would not abscond. The Dutch Embassy asked the court to
release the applicant taking into account the precarious state of his
health and his father's terminal illness. Other defendants also
lodged applications for release.
On
10 August 2005 the Tverskoy District Court rejected the requests. It
held:
“The court takes into account the defence's
argument that the individual approach to each defendant's situation
is essential when deciding on the preventive measure.
Examining the grounds on which ... the court ordered and
extended detention in respect of all the defendants without exception
... the court notes that these grounds still persist today.
Therefore, having regard to the state of health, family situation,
age, profession and character of all the defendants, and to the
personal guarantees offered by certain private individuals and
included in the case file, the court concludes that, if released,
each of the applicants might abscond or obstruct justice in some
other way.”
The
applicant appealed, complaining that the District Court had
disregarded the medical evidence confirming his and his father's poor
state of health. On 2 November 2005 the Moscow City Court upheld the
decision of 10 August 2005 on appeal, finding that the applicant had
not submitted medical certificates showing that his state of health
prevented him from remaining in custody.
On
16 September 2005 the Tverskoy District Court rejected a new
application for release, repeating verbatim the wording of the
decision of 10 August 2005.
In September 2005 the applicant asked the domestic
courts to release him for a few days so that he could see his father.
Mr Jaap Lind had asked for euthanasia which was scheduled for
29 September 2005. The Dutch Ambassador seconded his request.
On
27 September 2005 the Tverskoy District Court of Moscow refused to
release the applicant. It found that since the applicant was a Dutch
national he might abscond or interfere with the proceedings.
On
28 September 2005 the applicant was permitted a phone conversation
with his father, in Russian only. The Dutch Embassy paid for the
call. The conversation was interrupted by the facility administration
a minute later.
On
29 September 2005 Mr Jaap Lind died by euthanasia.
On
27 October 2005 the Moscow City Court upheld the decision of 27
September 2005 on appeal. It held that the information about the
deterioration of the applicant's father's health and the Dutch
Ambassador's request to release the applicant had been considered.
However, the refusal to release the applicant had been justified,
given the gravity of the charge against him. The court found that the
applicant had been living in Russia since 1989, had visited his
father no more than once a year and had mainly communicated with him
by mail and phone. He had been given an opportunity to talk to his
father over the phone. It further held that the applicant's state of
health was satisfactory, therefore there was no reason to amend the
preventive measure.
In October 2005 the applicant lodged a new application
for release. He submitted that his father had died and he wanted to
attend the farewell ceremony. The applicant vouched that he had no
intention of absconding and referred to his clean criminal record and
positive references. The Dutch Ambassador for a third time asked the
court for the applicant's temporary release so that he could attend
the farewell ceremony.
On
3 October 2005 the Tverskoy District Court rejected the request. It
referred to the gravity of the charge and the applicant's Dutch
nationality which gave reasons to believe that he might abscond.
The
applicant appealed. He again asked the court to release him so that
he could attend a farewell ceremony for his father. He also contended
that he suffered from a chronic kidney disease and required constant
medical supervision and treatment. He complained that his
applications to the detention facility doctor had remained unanswered
and that he had not been provided with any treatment for his disease.
On
27 October 2005 the Moscow City Court upheld the decision on appeal.
It found that the applicant's father had donated his body to science,
therefore there had been no funeral. The farewell ceremony was
scheduled for 30 October 2005 in The Hague. Taking into account the
gravity of the charge and the applicant's previously rare contact
with his father, it was inopportune to release him.
On 8 December 2005 the Tverskoy District Court
convicted the applicant of participation in mass disorders and
sentenced him to three years' imprisonment conditional on two years'
probation. The applicant was immediately released.
C. Conditions of detention
The
applicant was held in detention facility no. IZ-77/2 in Moscow.
According
to a certificate of 23 November 2005 issued by the facility
administration, produced by the Government, from 16 to 17 December
2004 and from 9 to 10 February 2005 the applicant was kept in cell
no. 511. The cell measured 9.7 sq. m, was equipped with five bunks
and accommodated three or four inmates. Cell no. 100 – where
the applicant was held from 17 December 2004 to 9 February 2005
and from 10 February to 29 April 2005 – measured 54.7 sq. m,
was equipped with twenty-two bunks and housed twenty inmates on
average. From 29 April to 8 December 2005 the applicant was detained
in cell no. 13 measuring 8.4 sq. m, containing four bunks and
accommodating four inmates on average. The Government submitted that
the applicant had at all times had a separate bunk and had been
provided with bedding.
The
Government contended that the cells were naturally illuminated
through the windows and were also equipped with fluorescent lamps
which functioned during the day and at night. On 12 July and
18 October 2005 cells nos. 2, 85, 101, 121, 159, 144, 148, 160,
163, and 236 were examined by a sanitary officer who found the
sanitary conditions satisfactory. No traces of insects or rodents
were discovered. Relying on a certificate of 12 November 2005
from the facility administration, the Government further submitted
that all cells were equipped with a lavatory pan. It was separated
from the living area by a brick partition of 1.3 or 2.5 metres in
height.
The
Government affirmed that inmates were provided with food three times
a day. They had an hour-long walk daily. The detention facility
housed a medical unit which was open twenty-four hours and had all
the necessary equipment for high-standard medical assistance.
However, the applicant never applied for medical aid.
The
applicant did not dispute the cell measurements, the number of bunks
and the number of inmates per cell. He disagreed, however, with the
Government's description of the sanitary conditions. The cells
swarmed with cockroaches, crickets and lice. There was no ventilation
and it was stifling and smoky inside. The partition separating the
toilet facilities from the living area did not offer sufficient
privacy and the person using the toilet was in view of the other
inmates. The artificial light was never switched off disturbing the
applicant's sleep. The applicant conceded that an hour-long walk was
organised every day. However, the exercise yard was covered and
measured no more than 15 sq. m. Food was scarce. Inmates were allowed
to take a shower for ten minutes once a week.
The applicant suffered from chronic glomerulonephritis
(a kidney disease) and required constant medical supervision and
treatment. He received no treatment. On 18 and 25 July 2005 he
complained of an aching kidney and asked the facility doctor to
examine him and prescribe medication. His request remained
unanswered.
II. RELEVANT DOMESTIC LAW
1. Preventive measures in criminal proceedings
Since
1 July 2002 criminal-law matters have been governed by the Code of
Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18
December 2001).
“Preventive measures” or “measures
of restraint” (меры пресечения)
include an undertaking not to leave a town or region, personal
surety, bail and detention (Article 98). If necessary, the suspect or
accused may be asked to give an undertaking to appear (обязательство
о явке) (Article 112).
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).
Detention may be ordered by a court if the charge
carries a sentence of at least two years' imprisonment, provided that
a less restrictive preventive measure cannot be applied (Article 108
§ 1).
After arrest the suspect is placed in custody “during
the investigation”. The period of detention during the
investigation may be extended beyond six months only if the detainee
is charged with a serious or particularly serious criminal offence.
No extension beyond eighteen months is possible (Article 109 §§
1-3). The period of detention “during the investigation”
is calculated to the day when the prosecutor sends the case to the
trial court (Article 109 § 9).
From
the date the prosecutor forwards the case to the trial court, the
defendant's detention is “before the court” (or “during
the trial”). The period of detention “during the trial”
is calculated to the date the judgment is given. It may not normally
exceed six months, 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).
2. Travel passports
A Russian national has to produce a travel passport to
cross the Russian border (section 7 of the Law on the Procedure for
Entering and Leaving the Russian Federation, no. 114-FZ of 15 August
1996). The travel passport of an accused can be retained by a court,
a prosecutor or a policeman until the termination of the criminal
proceedings (sections 6.1 § 3 and 6.7 of the Instruction on
issuance of travel passports, approved by the Order of the Ministry
of Internal Affairs, no. 310 of 26 May 1997).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that the conditions of his
detention in detention facility no. IZ-77/2 were in breach of Article
3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant maintained that the cells had been overcrowded; inmates had
been afforded less than 3 sq. m of personal space. The
applicant challenged the Government's description of sanitary
conditions as factually untrue. The sanitary reports, produced by the
Government, related to cells the applicant had never stayed in. The
applicant's cells had been stuffy and infested with parasites. Toilet
facilities had offered no privacy. The artificial light had never
been turned off, disturbing the applicant's sleep and leading to the
deterioration of his eyesight. He had not received treatment for his
kidney disease, despite his repeated requests.
The
Government submitted that the conditions of the applicant's detention
had been satisfactory. He had been provided with an individual bunk
and bedding at all times, and the sanitary and hygienic norms had
been met. He was able to exercise daily. The applicant had never
applied for medical assistance. If he had, he would have received
treatment. In sum, the conditions of the applicant's detention were
compatible with Article 3.
2. The Court's assessment
The
parties disputed certain aspects of the conditions of the applicant's
detention in facility no. IZ-77/2 in Moscow. However, there is no
need for the Court to establish the truthfulness of each and every
allegation, because it finds a violation of Article 3 on the basis of
the facts that have been presented or are undisputed by the
respondent Government, for the following reasons.
The
parties agreed about the cell measurements and the number of inmates
in the cells. In cells nos. 100 and 511 where the applicant was
held until the end of April 2005, inmates were afforded less than 3
sq. m of personal space. In cell no. 13, where the applicant stayed
until his release in December 2005, he had 2.1 sq. m of personal
space. The applicant was confined to his cell day and night, save for
one hour of daily outdoor exercise.
The Court has frequently found a violation of Article
3 of the Convention on account of lack of personal space afforded to
detainees (see Mamedova v. Russia, no. 7064/05,
§§ 61 et seq., 1 June 2006; Khudoyorov v. Russia,
no. 6847/02, §§ 104 et seq., ECHR 2005 X
(extracts); Labzov v. Russia, no. 62208/00, §§ 44
et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§§ 41 et seq., 2 June 2005; Mayzit v. Russia,
no. 63378/00, §§ 39 et seq., 20 January 2005;
Kalashnikov v. Russia, no. 47095/99, §§ 97 et
seq., ECHR 2002 VI; Peers v. Greece, no. 28524/95,
§§ 69 et seq., ECHR 2001 III).
Having regard to its case-law on the subject and the
material submitted by the parties, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
That the applicant was obliged to live, sleep and use the toilet in
the same cell with so many other inmates was itself sufficient to
cause distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention, and arouse in him the
feelings of fear, anguish and inferiority capable of humiliating and
debasing him.
The Court further observes that the applicant suffered
from a chronic kidney disease. It follows from the documents
submitted by the applicant that on at least two occasions he
complained of an aching kidney and asked for a medical examination
(see paragraph 46 above). However, the facility doctor did not
examine him. No treatment for his disease was provided.
The Court concludes that by keeping the applicant in
overcrowded cells and by refusing him medical assistance appropriate
to his condition, the domestic authorities subjected him to inhuman
and degrading treatment. There has therefore been a violation of
Article 3 of the Convention on account of the conditions of the
applicant's detention in facility no. IZ-77/2.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The applicant complained under Article 5 § 1 (c)
of the Convention that there had been no grounds to detain him and
that the domestic courts had not had due regard to the defence's
arguments. Under Article 5 § 3, he complained about a violation
of his right to trial within a reasonable time and alleged that
detention orders had not been founded on sufficient reasons.
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;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial ...”
A. Admissibility
As
regards the applicant's complaint that his detention was unlawful,
the Court notes that on 16 December 2004 the Khamovnicheskiy District
Court of Moscow ordered the applicant's placement in custody because
of the gravity of the charges against him. The applicant's detention
was subsequently extended on several occasions by the domestic
courts.
The
domestic courts acted within their powers in making those decisions
and there is nothing to suggest that they were invalid or unlawful
under domestic law. The question whether the reasons for the
decisions were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 § 3
(compare Khudoyorov, cited above, §§ 152 and
153).
The
Court finds that the applicant's detention was compatible with the
requirements of Article 5 § 1 of the Convention. It follows that
this complaint must be rejected as manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
As
regards the applicant's complaint about a violation of his right to
trial within a reasonable time or to release pending trial, the Court
finds that it is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
The
applicant considered that the domestic courts had not advanced
“relevant and sufficient” reasons to hold him in custody
for almost one year. He had positive references, no criminal record,
had been a student, had suffered from a serious disease and required
constant medical supervision and treatment, and his father had been
dying of cancer in the Netherlands. He had offered to post bail and
his counsel had provided the trial court with the personal surety of
a prominent Russian human-rights activist. However, the domestic
authorities had continuously extended his detention, without
demonstrating the existence of concrete facts in support of their
conclusion that he might abscond, interfere with the investigation or
re-offend. They had shifted the burden of proof to the applicant to
show that there had been no such risks and that he could be safely
released. Moreover, on a number of occasions the trial court had
issued collective detention orders, extending the detention of all
thirty-nine defendants without proper regard to their individual
circumstances. The applicant also submitted that the Court had
already found a violation of Article 5 § 3 of the Convention in
another application brought by the applicant's co-defendant (see
Dolgova v. Russia, no. 11886/05, 2 March 2006).
The
Government submitted that the decisions to remand the applicant in
custody had been lawful and justified. The Government repeated the
reasons given by the domestic courts and contended that the detention
orders had not been grounded solely on the gravity of the charges.
The domestic courts had gauged the applicant's potential to abscond
by reference to his character and Dutch nationality. Moreover, the
criminal proceedings had involved thirty-nine defendants and had been
complex. The trial court had held more than forty hearings. The
defendants' counsel had failed to appear at certain hearings, thereby
slowing the proceedings down. The applicant's release and his flight
would have caused yet further delays. The Government considered that
there had been no violation of Article 5 § 3 of the Convention
because the applicant's pre-trial detention had been founded on
“relevant and sufficient” reasons.
2. The Court's assessment
(a) General principles
The
Court reiterates that the persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine
qua non for the lawfulness of the continued detention. However
after a certain lapse of time it no longer suffices. In such cases,
the Court must establish whether the other grounds given by the
judicial authorities continued to justify the deprivation of liberty.
Where such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Labita v. Italy [GC], no. 26772/95,
§§ 152 and 153, ECHR 2000-IV).
The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable. A person charged
with an offence must always be released pending trial unless the
State can show that there are “relevant and sufficient”
reasons to justify the continued detention (see, among other
authorities, Castravet v. Moldova, no. 23393/05, §§ 30
and 32, 13 March 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...; Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, judgment of 27 June 1968, Series A
no. 8, § 4).
It
is incumbent on the domestic authorities to establish the existence
of concrete 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 v.
Russia, no. 54071/00, § 67, 7 April 2005; and
Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July
2001). The national judicial authorities must examine all the facts
arguing for or against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty and set them out in their decisions dismissing the
applications for release. It is not the Court's task to establish
such facts and take the place of the national authorities who ruled
on the applicant's detention. It is essentially on the basis of the
reasons given in the domestic courts' decisions and of the true facts
mentioned 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 of the Convention (see Korchuganova v. Russia,
no. 75039/01, § 72, 8 June 2006; Ilijkov, cited
above, § 86; and Labita, cited above, § 152).
(b) Application to the present case
The
applicant was placed in custody on 14 December 2004. On 8 December
2005 the trial court convicted him of a criminal offence, put him on
probation and immediately released him. The period to be taken into
consideration lasted almost twelve months.
The
Court observes that the applicant was apprehended on the premises on
which the impugned offences had allegedly been committed. It accepts
therefore that his detention could have initially been warranted by a
reasonable suspicion of his involvement in the commission of these
offences. It remains to be ascertained whether the judicial
authorities gave “relevant” and “sufficient”
grounds to justify the applicant's continued detention and whether
they displayed “special diligence” in the conduct of the
proceedings.
While
the investigation was pending the domestic courts consistently relied
on the gravity of the charges as the main factor for the assessment
of the applicant's potential to abscond, re-offend or obstruct the
course of justice. They did not demonstrate the existence of concrete
facts in support of their conclusions.
The
Court has repeatedly held that, although the severity of the sentence
faced is a relevant element in the assessment of the risk of an
accused absconding or re-offending, 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 Letellier v. France, judgment of 26
June 1991, Series A no. 207, § 51; also see Panchenko
v. Russia, no. 45100/98, § 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov, cited above, § 81).
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 examination of the issue whether the evidence
collected supported a reasonable suspicion that the applicant had
committed the imputed offence. Indeed, the initial charge of violent
overthrow of State power, which was a particularly serious criminal
offence according to the domestic classification, had been accepted
by the District Court on 8 February 2005 without any inquiry
having been carried out, although it was later amended to a lesser
charge of participation in mass disorders. Nevertheless, on 14 April
2005 the same court stated in the extension order that the amended
charge was also “well-founded”, without citing any
reasons for that finding (compare Dolgova, cited above, § 42).
The
only other ground for the applicant's detention during the
investigation was the domestic courts' finding that the applicant had
no permanent residence in Moscow. The Court reiterates that the mere
absence of a fixed residence does not give rise to a danger of
absconding (see Pshevecherskiy v. Russia, no. 28957/02,
§ 68, 24 May 2007; and Sulaoja v. Estonia,
no. 55939/00, § 64, 15 February 2005). In any
event, it was undisputed that the applicant had a fixed residence in
St Petersburg and was a student at a university there.
After the case had been submitted for trial in June 2005 the trial
court used the same summary formula to refuse the petitions for
release and extend the pre-trial detention of thirty-nine persons,
notwithstanding the defence's express request that each detainee's
situation be dealt with individually. The Court has already found
that the practice of issuing collective detention orders without a
case-by-case assessment of the grounds for detention in respect of
each detainee was incompatible, in itself, with Article 5 §
3 of the Convention (see Shcheglyuk v. Russia,
no. 7649/02, § 45, 14 December 2006;
Korchuganova, cited above, § 76; and Dolgova,
cited above, § 49). By extending the applicant's detention
by means of collective detention orders the domestic authorities had
no proper regard to his individual circumstances. It is even more
striking that the extension order of 20 June 2005 only noted
that “all defendants should remain in custody” without
giving any grounds whatsoever for their continued detention.
In
the decisions of 27 September and 3 October 2005 rejecting the
applications for release the courts relied for the first time in the
proceedings on the applicant's Dutch nationality as a reason to
believe that he might abscond. The Court accepts that a detainee's
foreign nationality could be a relevant factor in assessing the risk
of flight. However, the danger of an accused absconding does not
result just because it is possible or easy for him to cross the
frontier: there must be a whole set of circumstances, such as,
particularly, the lack of well-established ties in the country, which
give reason to suppose that the consequences and hazards of flight
will seem to him to be a lesser evil than continued imprisonment (see
Stögmüller v. Austria, judgment of 10 November
1969, Series A no. 9, § 15). The domestic courts
did not mention any such circumstance in their decisions or point to
any specific aspects of the applicant's character or behaviour that
would justify their conclusion that the applicant presented a
persistent flight risk. The applicant, on the other hand, constantly
invoked the facts showing his close ties with Russia that mitigated
the risk of his absconding abroad, such as his permanent place of
residence and family in Russia and ongoing studies at a Russian
university. In any event, the applicant, who was also a Russian
national, could only cross the Russian border with his Russian travel
passport (see paragraph 53 above). The domestic authorities did not
explain why the withdrawal of his Russian travel passport, a measure
explicitly envisaged in domestic law for removing flight risks, would
not have been sufficient to prevent him from absconding abroad.
The
Court further observes that when deciding whether a person should be
released or detained, the authorities have an obligation under
Article 5 § 3 to consider alternative measures of
ensuring his or her appearance at trial. This Convention provision
proclaims not only the right to “trial within a reasonable time
or to release pending trial” but also lays down that “release
may be conditioned by guarantees to appear for trial” (see
Sulaoja, cited above, § 64 in fine, 15 February
2005; and Jabłoński, cited above, § 83). In the
present case the authorities never considered the possibility of
ensuring the applicant's attendance by the use of a more lenient
preventive measure, although many times his lawyers asked for his
release on bail and provided the domestic courts with the personal
surety of a human-rights activist.
The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts prolonged an
applicant's detention relying essentially on the gravity of the
charges and using stereotyped formula without addressing concrete
facts or considering alternative preventive measures (see
Belevitskiy v. Russia, no. 72967/01, §§ 99
et seq., 1 March 2007; Khudobin v. Russia,
no. 59696/00, §§ 103 et seq., ECHR 2006 ...
(extracts); Mamedova v. Russia, cited above, §§ 72
et seq.; Dolgova v. Russia, cited above, §§ 38
et seq.; Khudoyorov v. Russia, cited above, §§ 172
et seq.; Rokhlina v. Russia, cited above, §§ 63
et seq.; Panchenko v. Russia, cited above, §§ 91
et seq.; and Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 56 et seq., ECHR 2003 IX
(extracts)).
The
Court is aware of the fact that a majority of the above-mentioned
cases concerned longer periods of deprivation of liberty and that
against that background one year may be regarded as a relatively
short period spent in detention. Article 5 § 3 of the
Convention, however, cannot be seen as authorising detention
unconditionally provided that it lasts no longer than a certain
period. Justification for any period of detention, no matter how
short, must be convincingly demonstrated by the authorities (see
Shishkov v. Bulgaria, no. 38822/97, § 66,
ECHR 2003 I (extracts)). The fact that the maximum time-limit
permitted by the domestic law was not exceeded is not a decisive
element for the Court's assessment, either. The calculation of the
domestic time-limits depended solely on the gravity of the charges
(see paragraph 51 above) which was decided upon by the prosecution
and was not subject to an effective judicial review (see Shcheglyuk,
cited above, § 43).
Having
regard to the above, the Court considers that by failing to address
concrete facts or consider alternative “preventive measures”
and by relying essentially on the gravity of the charges, the
authorities prolonged the applicant's detention on grounds which,
although “relevant”, cannot be regarded as “sufficient”.
In these circumstances is not necessary to examine whether the
proceedings were conducted with “special diligence”.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained that he was not allowed to bid farewell
to his dying father. He complained about the refusal to release him
for a few days so that he could see his father before his death or
attend the farewell ceremony in The Hague. He relied on Article 3 of
the Convention.
The Court has already found that the refusal of leave
to visit a sick relative does not attain a minimum level of severity
to fall within the scope of Article 3 (see Sannino v. Italy
(dec.), no. 72639/01, 3 May 2005). In a number of cases it
considered complaints about the rejection of a detainee's request for
permission to visit an ailing relative or attend a relatives' funeral
under Article 8 of the Convention (see Schemkamper v. France,
no. 75833/01, §§ 19-36, 18 October 2005; Sannino
(dec.), cited above; and Płoski v. Poland,
no. 26761/95, §§ 26-39, 12 November 2002).
Accordingly, the applicant's complaint about the refusals of leave to
visit his dying father and attend the farewell ceremony for him falls
to be examined under Article 8 of the Convention which reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
The
Government submitted that the domestic courts had refused the
applicant's request for temporary release because he had been charged
with a serious criminal offence and was a Dutch national. He might
have absconded, if released. Moreover, the applicant had been living
in Russia since 1989, had travelled to the Netherlands to visit his
father no more than once a year and had mainly corresponded with him
by mail and phone. He had been given an opportunity to talk to his
father over the phone. The applicant's father had donated his body to
science and there had been no funeral. Therefore, there had been no
violation of Article 8.
The
applicant exposed the Government's submissions as untrue. He had
often stayed with his father for several months and had had close
ties with him. It had been very important for him to see his father
before his death and to attend the farewell ceremony. He had offered
guarantees that he would not abscond. He had indeed been given an
opportunity to talk to his father over the phone, but the
conversation had lasted only a minute. He had been compelled to speak
Russian to his father, a Dutchman lacking a good command of the
Russian language.
2. The Court's assessment
The
Court has already found that the refusal of leave to visit an ailing
relative or to attend a relative's funeral constituted an
interference with the right to respect for family life (see
Schemkamper, cited above, § 31;
Sannino (dec.), cited above; and Płoski,
cited above, § 32). Accordingly, the refusals to
release the applicant so that he could see his father on his deathbed
and attend the farewell ceremony for him interfered with the
applicant's rights under Article 8 of the Convention. The Court
reiterates that any interference with an individual's right to
respect for his private and family life will constitute a breach of
Article 8, unless it was “in accordance with the law”,
pursued a legitimate aim or aims under paragraph 2, and was
“necessary in a democratic society” in the sense that it
was proportionate to the aims sought to be achieved (see, among other
authorities, Elsholz v. Germany [GC], no. 25735/94, § 45,
ECHR 2000-VIII).
The
Court is satisfied that the interference had a lawful basis, notably
Article 108 § 1 of the Code of Criminal Procedure which provided
for the preventive measure of detention of a person charged with an
offence carrying a sentence of at least two years' imprisonment. The
interference also pursued “a legitimate aim” within the
meaning of paragraph 2 of Article 8 of the Convention, that of
protecting public safety and preventing disorder or crime (see
Płoski, cited above, § 34). It remains
to be determined whether it was “necessary in a democratic
society”.
Article
8 of the Convention does not guarantee a detained person an
unconditional right to leave to visit a sick relative or attend a
relative's funeral. It is up to the domestic authorities to assess
each request on its merits. The Court's scrutiny is limited to
consideration of the impugned measures in the context of the
applicant's Convention rights, taking into account the margin of
appreciation left to the Contracting States (see, mutatis
mutandis, Płoski, cited above, §
38). At the same time the Court emphasises that even if a detainee by
the very nature of his situation must be subjected to various
limitations of his rights and freedoms, every such limitation must be
nevertheless justifiable as necessary in a democratic society. It is
the duty of the State to demonstrate that such necessity really
existed, that is, to demonstrate the existence of a pressing social
need (see Schemkamper, cited above, § 33).
In
the cases of Schemkamper, Sannino, and Płoski (all
cited above) the Court had regard to the following factors to assess
whether the refusals of leave to visit a sick relative or to attend a
relative's funeral were “necessary in a democratic society”:
the stage of the criminal proceedings against the applicant, the
nature of the criminal offence, the applicant's character, the
gravity of the relative's illness, the degree of kinship, the
possibility of escorted leave, and so on. Thus, a violation of
Article 8 was found in the Płoski case, where the
applicant, who had not been convicted, was charged with a non-violent
crime and sought leave to attend the funerals of his parents, who
died within one month of each other, whereas the authorities did not
give compelling reasons for the refusal and did not consider the
possibility of escorted leave. By contrast, in the Sannino case,
the refusal was justified because the applicant had been convicted of
murder and was of dubious character. He sought leave to visit his
grandfather who was not a close relative and whose state of health
was not really precarious. In the most recent case, Schemkamper,
the Court also found the refusal justified because the applicant's
father was not so unwell as to be unable to visit the applicant in
prison.
Turning
to the present case, the Court observes that the applicant's father
was dying of cancer in The Hague. He had asked for euthanasia, which
was scheduled for 29 September 2005. It is the distinguishing
feature of this case that the date of the applicant's father's death
was known in advance and that he was to die within a matter of days.
It was therefore the last opportunity for the applicant and his
father to meet. Given that the applicant's father was in hospital in
a grave condition, it was unrealistic to expect him to visit his son
in detention. Taking into account the exceptional circumstances of
the case and the strong humanitarian considerations involved, the
domestic authorities should have examined the applicant's request for
release with particular attention and scrutiny.
The
domestic authorities justified the refusal to temporarily release the
applicant by reference to his Dutch nationality and his potential to
abscond. The Court is not oblivious to the fact that the applicant's
father was in The Hague and that in order to see him the applicant
would have had to travel to the Netherlands, thereby leaving the
jurisdiction of Russia. It understands the apprehension of the
domestic authorities that the applicant might not return from abroad.
It notes in this connection that it was open to the Russian
authorities to seek assistance from the Dutch authorities. The
Russian authorities did not consider applying for such assistance,
despite the fact that the Dutch Ambassador had contacted them at
least three times to request the applicant's release (see paragraphs
27, 31 and 36 above). Nevertheless, given that the domestic
authorities are better placed than the European Court to assess the
matter, the Court is unable to find that, in refusing to release the
applicant so that he could visit his dying father in The Hague or
attend the farewell ceremony, the domestic authorities exceeded the
margin appreciation afforded to them.
The
respect for the applicant's family life required however that, once
his application for release had been rejected, he be provided with an
alternative opportunity to bid farewell to his dying father. The
Court notes in this connection that the applicant was allowed to talk
to his father over the phone, in Russian only. The conversation
lasted a minute and was interrupted by the facility administration.
The Government did not provide any explanation for the interruption
of the conversation. The Court considers that a one-minute
conversation in a language which the applicant's father had
difficulty understanding did not provide a meaningful opportunity for
the applicant to bid farewell to his dying father. No other
possibility to contact his father was provided.
Having regard to the foregoing, the Court concludes
that the domestic authorities failed to secure respect for the
applicant's family life as required by Article 8 of the Convention.
There has therefore been a breach of that provision.
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. Damage
The
applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that the claim was excessive. The award should
not exceed the amount awarded by the Court in the Kalashnikov case
(see Kalashnikov v. Russia, no. 47095/99, ECHR
2002 VI).
The Court notes that it has found a combination of
grievous violations in the present case. The applicant spent a year
in custody, in inhuman and degrading conditions. His detention was
not based on sufficient grounds. He was not allowed to bid farewell
to his dying father in violation of his right to respect for his
family life. In these circumstances, the Court considers that the
applicant's suffering and frustration cannot be compensated for by
the mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 15,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
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
Declares the complaints concerning the inhuman
conditions and excessive length of the applicant's detention and the
refusals of leave to visit his dying father and to attend the
farewell ceremony for him admissible and the remainder of the
application inadmissible;
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
8 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, EUR 15,000
(fifteen thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring opinion of Mr A. Kovler is
annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE KOVLER
I
agree with the Court's conclusions in the present case, including the
finding that there has been a violation of Article 5 § 3 of the
Convention.
In my
dissenting opinion in the case of Dolgova v. Russia
(no. 11886/05, 2 March 2006) I referred to the judgment in
the case of Labita v. Italy ([GC], no. 26772/95, § 152,
ECHR 2000-IV) to underline that “[w]hether it is reasonable for
an accused to remain in detention must be assessed in each case
according to its special features” (Labita, § 152).
Although the period of detention in the present case is the same as
in the Dolgova case, there are factors which, in my opinion,
distinguish it from Dolgova and warrant the conclusion
that there has been a violation of Article 5 § 3, such as the
applicant's chronic kidney disease, the inhuman conditions of his
detention (see paragraphs 42-45) and his father's terminal illness
and death. The domestic courts had an obligation under Article 99 of
the Russian Code of Criminal Procedure to take those factors into
account.
