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SHILBERGS v. RUSSIA - 20075/03 [2009] ECHR 2073 (17 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2073.html
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[2009] ECHR 2073
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FIRST
SECTION
CASE OF SHILBERGS v. RUSSIA
(Application
no. 20075/03)
JUDGMENT
STRASBOURG
17 December 2009
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 Shilbergs v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20075/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Artur Viesturovich
Shilbergs (“the applicant”), on 30 May 2003.
The
applicant, who had been granted legal aid, was represented by Mrs O.
Preobrazhenskaya, a lawyer with the International Protection Centre
in Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev and Mrs V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged, in particular, that he had been detained in
inhuman conditions, that he had been unable to participate
effectively in civil proceedings concerning him owing to the domestic
courts’ failure to ensure his presence, and that he had not
been provided with legal aid on appeal in a criminal case.
On
12 June 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lived until his arrest in the town of
Neman in the Kaliningrad Region. He is now serving his prison
sentence in the correctional colony in the village of Slavyanovka,
Kaliningrad Region.
A. Criminal proceedings against the applicant
On
16 August 2001 officers of the Krasnoznamensk town police department
arrested the applicant and brought him to the temporary detention
unit of the Neman town police department. A police investigator
informed the applicant that he had been arrested on suspicion of
aggravated robbery and that a prosecutor had authorised his detention
on 29 May 2001. The applicant, having been informed of the rights of
accused persons, including the right to legal aid, refused legal
assistance because he considered himself innocent, and signed a
record confirming his refusal. During the subsequent interview the
applicant denied the accusations and consistently maintained his
innocence.
On
28 September 2001 the applicant, who was still unrepresented, had a
confrontation interview with a co-accused, Mr P., at which he was
assisted by a lawyer. On a number of occasions the applicant
unsuccessfully requested the investigating authorities to hold
confrontations with other co-defendants, witnesses and victims.
On
3 October 2001 the applicant took part in a voice identification
parade. The parade was performed in the presence of the applicant’s
lawyer and two attesting witnesses. The victim was asked to identify
the alleged perpetrator by his voice. Two other individuals took part
in the parade. The applicant alleged that they had had very strong
accents because one of them was of Chechen ethnic origin and the
other one was Lithuanian.
Two
days later the investigator served the applicant and his counsel with
the bill of indictment and allowed them to study the case file. On
the following day the investigator closed the pre-trial investigation
and sent the case to the Neman Town Court for trial.
On
12 October 2001 the Town Court remitted the case to the investigating
authorities, finding that the applicant had not had sufficient time
to study the file. The applicant was granted a month for examination
of the file. In June 2002 the Town Court accepted a
request from the applicant’s counsel, Ms Z., and granted her
and the applicant five days to review the file.
On
11 June 2002 the prosecutor asked the Neman Town Court to remit the
case for an additional pre-trial investigation in order to correct
certain procedural defects. The applicant objected and applied for
release on his own recognisance. On the same day the Town Court
granted the prosecutor’s request and dismissed that of the
applicant.
On
30 July 2002 the Kaliningrad Regional Court quashed the decision of
11 June 2002 in the part concerning the remittance of the case to the
investigating authorities, and ordered that the Town Court should
commence the trial.
A
month later the first trial hearing was held. The applicant’s
lawyer unsuccessfully asked the Town Court to exclude from evidence
certain items including the record of the applicant’s voice
identification parade.
On
5 September 2002 the Neman Town Court found the applicant guilty of
several counts of aggravated robbery committed within a group of
individuals and sentenced him to nine years’ imprisonment.
The applicant’s lawyer, Ms Z., appealed.
The
Kaliningrad Regional Court fixed the first appeal hearing for
25 February 2003. The applicant’s lawyer, Ms Z., failed to
appear and the applicant asked for an adjournment. The Kaliningrad
Regional Court granted his request and postponed the hearing until
11 March 2003.
On
27 February 2003 the applicant, assuming that Ms Z. could no longer
participate, asked the Regional Court to appoint another counsel to
assist him during the appeal proceedings. The Government submitted
that the Regional Court had not responded to the applicant’s
request, acting in accordance with well-established judicial
practice. According to the Government, at the material time the
domestic courts erroneously considered that the Russian Code of
Criminal Procedure did not require them to appoint legal-aid counsel
to represent defendants in appeal proceedings.
On
1 April 2003 the Kaliningrad Regional Court upheld the applicant’s
conviction.
B. Detention in the detention unit of the Neman town
police department
1. Conditions of detention
On 16 August 2001 the applicant was placed in the
temporary detention unit of the Neman town police department, where
he remained until 24 August 2001. Between 16 August 2001 and
12 November 2002 he was detained in the unit twelve times, the
shortest period of his detention lasting two days and the longest one
seventeen. The aggregate length of his detention in the unit amounted
to three months and thirteen days.
In
his application form the applicant alleged that he had usually been
detained in a cell measuring over nine square metres and
accommodating six detainees. In his observations lodged on 1 March
2007, however, he amended his description, insisting that he had been
kept in a cell measuring 6.2 square metres which housed up to 5
inmates. The remaining description of the conditions of his detention
in the unit did not vary. In particular, the applicant argued that
inmates had taken turns to sleep owing to the shortage of sleeping
places. No bedding was provided. The cell had a window thirty
centimetres wide and forty centimetres long. The cell was lit by a
small bulb. In the absence of artificial ventilation in the cell it
was hard to breathe owing to the thick smoke and the humidity. The
cell was swarming with insects. There was no heating in winter. There
was no lavatory pan or wash-bowl. Inmates used a bucket as a lavatory
pan. They were allowed to clean the bucket twice a day: early in the
morning and at about 6 p.m. There was no shower room in the detention
unit. Inmates were provided with food once a day. In addition, in the
morning they were given hot water and in the evening sweet tea. The
detention unit did not have a recreation yard and inmates were
therefore confined to their cells day and night.
2. Proceedings seeking compensation for damage
On
24 June 2003 the applicant brought an action in tort against the
management of the Neman town detention unit and the Kaliningrad
Regional Department of the Federal Treasury. He claimed that the
conditions of his detention in the unit had been inhuman and had led
to a serious deterioration of his health. He also sought leave to
appear before the Town Court.
On 20 August 2003 the Neman Town Court ordered that
the applicant should be brought to the hearing fixed for 4 September
2003, finding that “it was necessary to hear him in person as
the plaintiff”.
According to the Government, the management of the
correctional colony where the applicant was detained at the material
time refused to comply with the order of 20 August 2003 because
domestic law did not lay down a procedure for transferring convicted
prisoners to ensure their participation in civil cases. The
management informed the applicant that domestic law did not oblige
the authorities to ensure his presence at the hearing.
On 3 October 2003 the applicant received a letter from
the Neman Town Court. He was informed that a hearing was listed for
24 September 2003 and that it would be held in his absence
because the colony management had not brought him to the Neman Town
Court.
On
29 December 2003 the Neman Town Court ordered a forensic medical
examination of the applicant. On completion of the examination, on 12
March 2004, the applicant was served with a copy of the expert report
and informed that the hearing had been fixed for 18 March 2004.
On 6 April 2004 the Neman Town Court partly allowed
the applicant’s action and awarded him 1,500 Russian roubles
(RUB, approximately 43 euros) in compensation for non-pecuniary
damage. The Town Court held, in so far as relevant, as follows:
“[The applicant’s] argument that his right
to the established norm of four square metres of personal space was
violated has been amply proven.
The... witnesses confirmed that the detention unit has
four cells... Cells nos. 1 and 2 each measure 6 sq. m, cell no. 4
measures 9.8 sq. m and cell no. 3 measures 10.3 sq. m. [The
applicant] was detained in cell no. 4: from 20 to 24 August 2001
6 to 7 inmates were detained there, from 3 to 13 September 2001
5 to 7 detainees; from 27 September to 14 October 2001 4 to 6
inmates; from 13 to 18 November 4 to 5 inmates; and from 22 March to
4 April 2002 seven individuals were kept [in that cell]. From May
2002 onwards [the applicant] was detained alone in cells nos. 2 and
3. The registration log, listing the number of persons detained in
the unit in specific cells, fully corroborates this account.
[The applicant’s] allegation concerning
insufficient lighting was confirmed. The single small window, which
is situated right below the ceiling and is covered by two metal
sheets with small perforated holes between which a fine metal net is
suspended, gives no light. A bulb is situated outside the cell and
provides insufficient lighting. The head of the temporary detention
unit, Mr L., attempted to carry out renovations in 2001 and
artificial lighting was installed in the cells; however, a commission
arrived and found that the bulbs had been installed incorrectly, and
everything was returned to its previous place...
[The applicant’s] submission pertaining to the
absence of artificial ventilation in the cells and the presence of
high humidity levels was also proven. The small window covered with
metal sheets with a metal net between them barred access to fresh
air; in autumn, winter and spring it was even covered with felt
cloth.
The allegation concerning the lack of a lavatory pan and
water supply system in the cell was also confirmed. They are not
installed in the cells; [inmates] were taken out of the cells twice
in twenty-four hours, at 6.00 a.m. and 6.00 p.m.; at those times they
could also wash their faces; for the rest of the day or night they
used a special bucket as [a lavatory pan]. As to [the applicant] he
was frequently taken to the toilet for whatever purpose was required.
[The applicant’s] argument concerning the scarcity
of food was not refuted. Food was provided in the detention unit once
a day. In the morning and evening inmates received tea; lunch was
brought in from the municipal cafeteria “Hope” in the
afternoon; [lunch] consisted of two courses based on a given sum per
inmate. The abovementioned witnesses did not dispute that food had
been provided once a day...
The sanitary conditions in the detention unit do not
comply with sanitary norms. The record of a sanitary inspection of
the cells in the detention unit carried out in 2000-02 was destroyed.
However, as is clear from [eight] letters sent by the Neman town
temporary detention unit to the Head of the Neman district council
and the Neman district sanitary inspector [in 1998, 2001 and 2002],
the sanitary conditions did not meet personal hygiene standards. The
temporary detention unit did not have a contract ... for cleaning of
the premises.
[The applicant’s] argument about the violation of
his right to a daily walk was not refuted. Inmates were not allowed
outdoor exercise in the detention unit as it does not have a
recreation yard.
[The applicant’s] allegation pertaining to a
violation of his right to bathe was fully proven. The detention unit
does not have a shower room; persons detained in the temporary
detention unit cannot take a shower and there is no provision for
such a possibility, as individuals cannot be detained in the
detention unit for more than ten days; there is no hot water [in the
detention unit].
The court considers manifestly ill-founded [the
applicant’s] submissions concerning insufficient medical
assistance. Medical assistance is provided on request to persons
detained in the temporary detention unit: either an ambulance is
called or inmates are taken to a doctor. The detention unit has a log
recording the initial questioning, examination and provision of
medical assistance to individuals detained in the Neman town
temporary detention unit. [The applicant] requested medical
assistance as follows: twice on 9 October 2001, a body temperature of
37.7 degrees was recorded and a doctor diagnosed him with bronchitis;
on 2 February 2002 his blood pressure was taken and treatment was
prescribed; on 15 February 2002 a fake incident was recorded;
however, medical assistance was subsequently provided and he was sent
for examination by a physician; on 18 May 2002 he was diagnosed with
an acute ulcer and treatment was prescribed; on 20 May 2002 medical
assistance was provided on two occasions and treatment was
prescribed; on 9 June 2002 medical assistance was provided; on 23
August 2002 he was examined but no medical assistance was needed.
The [applicant’s] allegation concerning his
detention in the unit for more than ten days was confirmed. By virtue
of Article 96 § 2 of the RSFSR Code of Criminal Procedure, in
force at the time [the applicant] was detained, suspects and accused
persons could be placed in temporary detention units ... for no
longer than ten days within a given month. The ten-day time-limit for
detention in the temporary detention unit was breached twice... He
was detained for 17 days from 27 September to 14 October 2001
and for 15 days from 24 August to 8 September 2002. As a result, in
September 2001 he stayed in the detention unit for 15 days; in
October 2001 [he stayed] for 24 days and in March 2002 for 14 days.
[The applicant’s] allegations pertaining to lack
of an individual sleeping place and extreme cold in winter in the
cell were proven. All witnesses confirmed that [the applicant] had
not had an individual sleeping place and that there had been
insufficient heating in winter in the cells. The witnesses disputed
[the applicant’s] allegation that he had not been provided with
a mattress and pillow; [the witnesses] explained that he had always
been provided with a mattress and pillow and had had his own blanket.
...
Accordingly, the court concludes that [the applicant’s]
right to be detained in the temporary detention unit in accordance
with the established rules and regulations was breached and that he
sustained physical and mental suffering.
...
[The applicant’s] argument that his health was
damaged as a result of the poor conditions of his detention in the
Neman town detention unit is not proven.
As is clear from the report of the forensic medical
examination performed by the Health Department of the Kaliningrad
Region, it is impossible to establish a direct causal link between
[the applicant’s] detention in the Neman town temporary
detention unit and his illnesses.
In determining the amount of compensation for
non-pecuniary damage the court has taken into account the degree of
liability of the persons responsible, the insufficiency of funds and
the level of physical and mental suffering of [the applicant], and
considers it necessary to award 1,500 roubles in compensation.”
On 26 April 2004 the applicant lodged a statement of
appeal. He complained, in particular, that the Town Court had not
ensured his presence at the hearings. He also sought leave to appear
before the appeal court.
On 16 June 2004 the Kaliningrad Regional Court upheld
the judgment of 6 April 2004, endorsing the Town Court’s
reasoning and noting that the applicant’s presence at the
hearings, before either the Town Court or the Regional Court, was not
required.
C. Detention in facility no. IZ-39/1 in Kaliningrad
1. Conditions of detention
From
24 August 2001 to 17 April 2003, save for short periods when the
applicant was transferred to the Neman town temporary detention unit,
he was detained in Kaliningrad no. IZ-39/1 detention facility.
According to the applicant, that detention facility was built in 1929
and no renovation work on the cells had been carried out since.
The
Government, relying on a certificate issued on 16 August 2006 by the
director of facility no. IZ-39/1, submitted that during the period in
question the applicant had been detained in fourteen different cells,
measuring from 7.7 to 18.5 sq. m. The smallest cell had two sleeping
places and the largest one had six. The Government further noted that
the applicant had had an individual sleeping place at all times as
the number of inmates per cell had always corresponded to the number
of sleeping places.
Citing
the information provided by the director of the facility, the
Government further submitted that the cells received natural light
and ventilation through a large window which was double-glazed and
measured 1.2 sq. m. The windows had a casement. Inmates could request
warders to open the casement to admit fresh air. The windows were
covered by thick bars with so-called “eyelashes”, that
is, slanted plates approximately two centimetres apart welded to a
metal screen, which gave no access to natural air or light. In
compliance with the recommendations of the Russian Ministry of
Justice issued on 25 November 2002, the latter construction was
removed from the windows on an unspecified date. Subsequently, the
windows were covered with latticed partitions to ensure “sound
and visual insulation”. The cells had ventilation shafts. The
cells were equipped with lamps which functioned day and night. Each
cell was equipped with a lavatory pan, a sink and a tap for running
water. The pan was separated from the living area by a one-metre-high
partition. Inmates were allowed to take a shower once in ten days.
Each inmate was given at least fifteen minutes to take a shower. The
cells were disinfected. The Government, relying on the information
provided by the director of the facility, further stated that the
applicant was given food “in accordance with the established
norms”. According to the Government, detainees including the
applicant were provided with medical assistance. They had regular
medical check-ups, including X-ray examinations, blood tests, and so
on. On his admission to the facility the applicant was diagnosed with
a skin rash and treatment was prescribed. In February, March and
November 2002 and March 2003 the applicant underwent treatment for
his acute ulcer. The Government furnished a copy of the applicant’s
medical record and medical certificates.
The
applicant did not contest the cell measurements. However, he insisted
that the cells had been severely overcrowded and that he had had less
than two square metres of living space. Citing statements by inmates
who had been detained in facility no. IZ-39/1, he stressed that the
smallest cell in which he had been detained had had six sleeping
places and the largest one had had twelve bunks. Inmates had to take
turns to sleep. They were not provided with bedding. The applicant
further submitted that the sanitary conditions had been appalling.
The cells were infested with insects but the management did not
provide any insecticide. Walls in the cells were covered with thick
layer of mould. Pieces of plaster fell from the walls. Relying on
colour photographs of the cells, the applicant submitted that the
windows were covered with metal blinds which blocked access to
natural light and air. In certain cells the windows were not glazed
and inmates used plastic film or blankets to cover them in winter. It
was impossible to take a shower as inmates were given only fifteen
minutes and two to three men had to use one shower head at the same
time. That situation was further aggravated by the fact that inmates
could only take a shower once every two weeks. Inmates had to wash
and dry their laundry indoors, creating excessive humidity in the
cells. They were also allowed to smoke in the cells. The lavatory pan
was separated from the living area by a small partition. At no time
did inmates have complete privacy. No toiletries were provided. The
food was of poor quality and in scarce supply. The applicant further
argued that medical assistance had been unavailable.
2. Proceedings seeking compensation for damage
In
June 2003 the applicant brought an action before the Tsentralniy
District Court of Kaliningrad against the facility management and the
Federal Treasury, seeking compensation for damage. In particular, he
claimed that the conditions of his detention in facility no. IZ-39/1
had been appalling. He also sought leave to appear before the
District Court.
On
14 July 2003 the Tsentralniy District Court decided to stay the
proceedings and asked the applicant to produce evidence. That
decision was quashed on appeal by the Kaliningrad Regional Court and
the case was sent back to the District Court for an examination on
the merits.
On 30 September 2003 the applicant received a letter
dated 1 September 2003 from the District Court, informing him
that a preliminary hearing had been fixed for 8 September 2003, and
that he had the right to appoint a representative or ask the District
Court to adjudicate the action in his absence. The applicant was also
informed that his presence at hearings was not mandatory under
Russian law.
On
24 September 2003 the applicant received a letter from the District
Court, sent on 19 September 2003. He was informed of the first
hearing listed for 20 October 2003. The remaining text of the letter
was identical to the letter of 1 September 2003.
The
applicant wrote to the District Court seeking leave to appear. He
explained that he could not appoint a lawyer as he had no funds to
pay for his services.
On 24 November 2003 the Tsentralniy District Court, in
the applicant’s absence, dismissed the action as
unsubstantiated. The District Court held, in particular, as follows:
“...[it was] established that [the applicant],
when in the detention facility, had been held in cells which were
designed [to house] six detainees..., in particular in cell no. 16
measuring 7.9 sq. m..., in cell no. 45 measuring 8 sq. m..., in cell
no. 57 measuring 7.8 sq. m ... and in cell no. 54 measuring 7.7 sq.
m... There are no data on the number of inmates in those cells.
... cells had central heating, water supply, a sewerage
system, natural and artificial lighting and artificial ventilation.
There were two-tier bunks with bedding in the cells. The lighting in
the cells emitted 50-75 lux, and the temperature in the cells
satisfied the sanitary requirements and was 18 degrees Celsius above
zero... At the material time and at present repair work was/is being
performed in cells... Spot-checks of the sanitary conditions in the
cells were carried out and no serious violations were established.
Detainees clean up their cells once a day (in the mornings)...
Medical staff monitored sanitary conditions in cells...
The cells where the applicant was detained had a
lavatory pan and a tap. ... the cells had cell furniture. The walls
of the cells were smoothly plastered and painted. Metal plates on the
windows were installed in accordance with the requirements... Inmates
were given no less than fifteen minutes to take a shower... If
necessary, following a written request, a detainee could be granted
additional opportunities to take a shower.
... Detainees were provided with food in accordance with
the norms established by the Government of the Russian Federation...”
On
11 December 2003 the applicant informed the District Court that he
wished to appeal against the judgment of 24 November 2003. He asked
for a copy of the defendant’s counterclaim and copies of other
documents submitted to the District Court by the defendant. According
to the applicant, the request received no response. The Government,
relying on copies of registration logs of incoming and outgoing mail
in the correctional colony in which the applicant had been detained
at the material time and copies of the applicant’s handwritten
notes confirming receipt of the documents, submitted that the
applicant had been served with copies of all documents requested by
him from the District Court.
On
16 December 2003 the applicant lodged his statement of appeal,
complaining, inter alia, that the District Court had failed to
ensure his presence at the hearings despite his requests to that
effect and that he had had no opportunity to appoint a
representative. He further argued that he had not been able to study
the materials presented to the District Court by the defendant as he
had not been served with them. The applicant also sought leave to
appear before the appeal court and asked to be provided with legal
assistance.
On 10 March 2004 the Kaliningrad Regional Court upheld
the judgment of 24 November 2003, endorsing the District Court’s
reasoning. The applicant was neither present nor represented.
Publication in the press and defamation action
On
21 August 2001 a local newspaper, “Komsomolskaya Pravda v
Kaliningrade”, published an article entitled “Cranberry
Drink” (“Кисель
из Клюквы”).
The article concerned the killing of a prominent mafia leader in the
town of Neman. The reporter described how police officers had chased
a stolen car in which the “driver-thief” and the mafia
leader were travelling. The parts of the article which concerned the
applicant read as follows:
“During questioning the driver-thief Artur
Shilbergis [the applicant’s last name was misspelled]
confessed that his accomplice [the mafia leader] had most probably
“been using drugs” and had not understood anything.
The background to that car theft is the following. On 11
May this year three unknown persons in masks broke into the flat of a
businessman in Neman. [They] stole 1,800 [US] dollars. Investigators
identified the thieves. Mr M. organised the assault, his young
girlfriend S. was on guard and three locals committed the robbery.
But only one of the five bandits was arrested – Mr Pr. He gave
useful statements and a prosecutor let him go on a written
undertaking. Right away Mr Pr. began to receive threats prompting him
to change his testimony.
On that fateful day Mr M. and the second robber Artur
Shilbergis came to Mr Pr.’s home. [They] began banging on the
door. The man did not open.
But it appears that Mr Pr. forgot to close the door of
his car. The engine roared, and when the man ran out into the street,
there was no trace of his friends.”
On
2 June 2003 the applicant brought a defamation action against the
newspaper. He complained that the Neman town police department had
provided the newspaper with information concerning his arrest, that
he had been called “a robber”, “a bandit” and
“a rapist” in the article and that the reporter, in
violation of Article 6 § 2 of the Convention, had informed the
public that the applicant had robbed a businessman in Neman. The
applicant also sought leave to appear.
On
24 October 2003 the Leninskiy District Court of Kaliningrad dismissed
the applicant’s action. The applicant was neither present nor
represented, although a representative of the defendant attended.
The
applicant appealed and sought leave to appear.
On
14 January 2004 the Kaliningrad Regional Court quashed the judgment
of 24 October 2003 and remitted the case for fresh examination. The
applicant was not present.
The
applicant again requested the District Court to ensure his presence
at the hearing.
On 20 October 2004 the Oktyabrskiy District Court of
Kaliningrad, in the applicant’s absence, dismissed his action,
finding that the information published in the article had been
correct and corroborated by the findings of the trial court which had
convicted the applicant of aggravated car theft on 16 November
2001. The reporter had not accused the applicant of any crime; he had
merely described the circumstances that had led to the institution of
criminal proceedings against the applicant. Furthermore, the District
Court stressed that the reporter had never called the applicant “a
rapist”, “a bandit” or “a robber”.
The
applicant appealed, complaining, in particular, that he had not been
able to attend any of the hearings before the District Court. He also
sought leave to appear before the appeal court.
On 2 March 2005 the Kaliningrad Regional Court upheld
the judgment of 20 October 2004, accepting the District Court’s
reasoning. The applicant was neither present nor represented, while
the newspaper’s representative attended the hearing. With
regard to the applicant’s complaint about his absence from the
hearings, the Regional Court held as follows:
“In the statement of appeal [the applicant] asks
the court to quash the judgment because the [District] court violated
his right to “a fair trial” as guaranteed by paragraph 1
of Article 6 of the European Convention, by adjudicating his action
in his absence although he had sought leave to appear...
The arguments concerning the violation by the court of
the plaintiff’s right to personal attendance at the hearings,
as guaranteed by Article 6 § 1 of the European Convention,
cannot be accepted as valid because this right applies to criminal
cases. As to civil cases, this right is applicable only to cases of a
particular type when it is impossible to adjudicate the action in the
parties’ absence. In other cases the Convention does not
guarantee the right to personal participation in the adjudication of
a civil action. In the present case, the plaintiff’s personal
participation in the adjudication of the action by the court was not
necessary, as the subject-matter of the dispute was a newspaper
publication and not something directly related to the plaintiff’s
personality.
Moreover, the Russian law in force does not require that
plaintiffs who are serving a prison sentence should be brought to
hearings for adjudication of their actions.”
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
Section 22 of the Detention of Suspects Act (Federal
Law no. 103-FZ of 15 July 1995) provides that detainees should be
given free food sufficient to maintain them in good health according
to standards established by the Government of the Russian Federation.
Section 23 provides that detainees should be kept in conditions which
satisfy the sanitary and hygienic requirements. They should be
provided with an individual sleeping place and given bedding,
tableware and toiletries. Each inmate should have no less than four
square metres of personal space in his or her cell.
B. Civil-law remedies against illegal acts by public
officials
Article 1064 § 1 of the Civil Code of the Russian
Federation provides that damage caused to the person or property of a
citizen shall be compensated in full by the tortfeasor. Pursuant
to Article 1069, State agencies and State officials shall be liable
for damage caused to an individual by their unlawful actions or
failure to act. Such damage is to be compensated at the expense of
the federal or regional treasury. Articles 151 and 1099-1101 of the
Civil Code provide for compensation for non-pecuniary damage. Article
1099 states, in particular, that non-pecuniary damage shall be
compensated irrespective of any award for pecuniary damage.
C. Provisions on attendance at hearings
The Code of Civil Procedure of the Russian Federation
provides that individuals may appear before a court in person or act
through a representative (Article 48 § 1). The court may appoint
an advocate to represent a defendant whose place of residence is not
known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002)
provides that free legal assistance may be provided to indigent
plaintiffs in civil disputes concerning alimony or pension payments
or claims concerning damage to health (section 26 § 1).
The Penitentiary Code provides that convicted persons
may be transferred from a correctional colony to an investigative
unit if their participation is required as witnesses, victims or
suspects in connection with certain investigative measures (Article
77 § 1). The Code does not mention any possibility for a
convicted person to take part in civil proceedings, whether as a
plaintiff or a defendant.
On several occasions the Constitutional Court has
examined complaints by convicted persons whose requests for leave to
appear in civil proceedings were refused by the courts. It has
consistently declared the complaints inadmissible, finding that the
impugned provisions of the Code of Civil Procedure and the
Penitentiary Code did not, as such, restrict the convicted person’s
access to court. It has emphasised, nonetheless, that the convicted
person should be able to make submissions to the civil court, either
through a representative or in any other way provided by law. If
necessary, the hearing may be held at the location where the
convicted person is serving his or her sentence, or the court hearing
the case may instruct the court with territorial jurisdiction over
the correctional colony to obtain the applicant’s submissions
or carry out any other procedural steps (decisions no. 478-O of 16
October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21
February 2008).
By virtue of Articles 58 and 184 of the Code of Civil
Procedure, a court may hold a session outside the courthouse if, for
instance, it is necessary to examine evidence which cannot be brought
to the courthouse.
Provisions on participation of counsel in criminal cases
Article 51 of the Code of Criminal Procedure of the
Russian Federation, in so far as relevant, reads as follows:
“1. Participation of legal counsel in
the criminal proceedings is mandatory if:
(1) the suspect or the accused has not waived
the right to legal representation in accordance with Article 52 of
this Code;
(2) the suspect or the accused is a minor;
(3) the suspect or the accused cannot
exercise his right of defence by himself owing to a physical or
mental handicap;
(3.1) the court proceedings are to be
conducted [in the absence of the accused] in accordance with Article
247 § 5 of this Code;
(4) the suspect or the accused does not speak
the language in which the proceedings are conducted;
(5) the suspect or the accused faces serious
charges carrying a term of imprisonment exceeding fifteen years, life
imprisonment or the death penalty;
(6) the criminal case falls to be examined in
a jury trial;
(7) the accused has filed a request for the
proceedings to be conducted [without a hearing] under Chapter 40 of
this Code;
...
3. In the circumstances provided for by
paragraph 1 above, unless counsel is appointed by the suspect or the
accused or his lawful representative, or other persons at the request
or with the consent of the suspect or the accused, it is incumbent on
the investigator, the prosecutor or the court to ensure the
participation of legal counsel in the proceedings.”
Article
52 of the Code provides that a suspect or an accused may refuse legal
assistance at any stage of the criminal proceedings. Such a waiver
may only be accepted if made on the initiative of the suspect or the
accused. The waiver must be filed in writing and must be recorded in
the official minutes of the relevant procedural act. The refusal of
legal assistance does not deprive the suspect or accused of the right
to ask to be assisted by counsel during further procedural steps in
the criminal case. The admission of a lawyer may not lead to the
repetition of the procedural steps which have already been performed
by that time.
Article
373 of the Code provides that the appeal court examines appeals with
a view to verifying the lawfulness, validity and fairness of
judgments. Under Article 377 §§ 4 and 5 of the Code, the
appeal court may directly examine evidence, including additional
material submitted by the parties.
Article
376 of the Code provides that on receipt of the criminal case and the
statements of appeal, the judge fixes the date, time and place of the
hearing. The parties must be informed of the date, time and place of
the hearing no later than fourteen days before the scheduled hearing.
The court determines whether the prisoner should be summoned to the
hearing. If the prisoner has expressed the wish to be present at the
examination of his appeal, he has the right to participate in person
or to state his case via video link. The manner of his participation
in the hearing is to be determined by the court.
Examining
the compatibility of Article 51 of the Code of Criminal Procedure
with the Constitution, the Constitutional Court ruled as follows
(decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal
Procedure, which describes the circumstances in which the
participation of defence counsel is mandatory, does not contain any
indication that its requirements are not applicable in appeal
proceedings or that the prisoner’s right to legal assistance in
such proceedings may be restricted.”
That
position was subsequently confirmed and developed in seven decisions
delivered by the Constitutional Court on 8 February 2007. The court
found that free legal assistance for the purpose of appellate
proceedings should be provided on the same basis as during the
earlier stages of the proceedings and was mandatory in the situations
listed in Article 51. It further underlined the obligation of the
courts to secure the participation of defence counsel in appeal
proceedings.
III. RELEVANT INTERNATIONAL DOCUMENTS
General conditions of detention
The
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) visited the Russian
Federation from 2 to 17 December 2001. The section of its Report to
the Russian Government (CPT/Inf (2003) 30) dealing with the
conditions of detention in temporary holding facilities and remand
establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal
suspects (IVS)
26. According to the 1996 Regulations establishing the
internal rules of Internal Affairs temporary holding facilities for
suspects and accused persons, the living space per person should be 4
m². It is also provided in these regulations that detained
persons should be supplied with mattresses and bedding, soap, toilet
paper, newspapers, games, food, etc. Further, the regulations make
provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS
establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was
pleased to note the progress being made on an issue of great concern
for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in
November 1998, overcrowding was identified as the most important and
urgent challenge facing the prison system. At the beginning of the
2001 visit, the delegation was informed that the remand prison
population had decreased by 30,000 since 1 January 2000. An example
of that trend was SIZO No 1 in Vladivostok, which had registered a
30% decrease in the remand prison population over a period of three
years.
...
The CPT welcomes the measures taken in recent years by
the Russian authorities to address the problem of overcrowding,
including instructions issued by the Prosecutor General’s
Office, aimed at a more selective use of the preventive measure of
remand in custody. Nevertheless, the information gathered by the
Committee’s delegation shows that much remains to be done. In
particular, overcrowding is still rampant and regime activities are
underdeveloped. In this respect, the CPT reiterates the
recommendations made in its previous reports (cf. paragraphs 25 and
30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50
of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the
report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners
expressed scepticism about the operation of the complaints procedure.
In particular, the view was expressed that it was not possible to
complain in a confidential manner to an outside authority. In fact,
all complaints, regardless of the addressee, were registered by staff
in a special book which also contained references to the nature of
the complaint. At Colony No 8, the supervising prosecutor indicated
that, during his inspections, he was usually accompanied by senior
staff members and prisoners would normally not request to meet him in
private “because they know that all complaints usually pass
through the colony’s administration”.
In the light of the
above, the CPT reiterates its recommendation that the Russian
authorities review the application of complaints procedures, with a
view to ensuring that they are operating effectively. If necessary,
the existing arrangements should be modified in order to guarantee
that prisoners can make complaints to outside bodies on a truly
confidential basis.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN THE
DETENTION UNIT OF THE NEMAN TOWN POLICE DEPARTMENT
The
applicant complained that the conditions of his detention in the
detention unit of the Neman town police department had been 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. Submissions by the parties
The Government commented on the conditions of the
applicant’s detention. In particular, they submitted that, in
violation of the domestic requirements, the applicant had usually
been afforded less than four square metres of personal space during
his detention in the unit. At the same time the Government, citing
the court’s judgment in the case of Kemmache v. France (no.
3) (24 November 1994, Series A no. 296 C), argued that the
applicant could no longer claim to be a victim of the violation of
his rights under Article 3 of the Convention, as the domestic courts
had acknowledged the violation and had redressed it by allowing the
applicant’s action against the facility management and awarding
him compensation for non-pecuniary damage.
The
applicant insisted that the conditions of his detention had been
inhuman and degrading. He further argued that, despite the fact that
the domestic courts had acknowledged the violation of his rights, he
had not lost his “victim” status, as the compensation of
RUB 1,500 for more than three months of detention in appalling
conditions could hardly be considered adequate redress.
The Court’s assessment
Admissibility
(a) The Government’s objection
concerning the applicant’s lack of “victim status”
The
Court notes the Government’s argument that in the light of the
domestic courts’ ruling awarding the applicant compensation for
non-pecuniary damage caused as a result of his detention in the Neman
town detention unit, he could no longer claim to be a victim of a
violation of Article 3 of the Convention within the meaning of
Article 34 of the Convention. In this respect, the Court reiterates
that Article 34 of the Convention, in its relevant part, provides:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. ....”
(i) Principles established under the
Court’s case-law
The Court summarised the principles governing the
assessment of an applicant’s victim status in paragraphs
178-192 of its judgment in the case of Scordino v. Italy (no. 1)
([GC], no. 36813/97, ECHR 2006-V). In so far as relevant to the case
under consideration, they are:
(a) in
accordance with the subsidiarity principle, it falls first to the
national authorities to redress any alleged violation of the
Convention. In this regard, the question whether an applicant can
claim to be a victim of the violation alleged is relevant at all
stages of the proceedings under the Convention;
(b) a
decision or measure favourable to the applicant is not in principle
sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention;
(c) the
applicant’s ability to claim to be a victim will depend on the
redress which the domestic remedy will have given him or her;
(d) the
principle of subsidiarity does not mean renouncing all supervision of
the result obtained from using domestic remedies, otherwise the
rights guaranteed by the Convention would be devoid of any substance.
In that connection, it should be reiterated that the Convention is
intended to guarantee not theoretical or illusory rights but rights
that are practical and effective.
(ii) Application of the foregoing
principles
It
follows from the foregoing principles that the Court must verify
whether the authorities acknowledged, at least in substance, that
there had been a violation of a right protected by the Convention,
and whether the redress can be considered appropriate and sufficient
(see Scordino (no. 1), cited above, § 193).
(α) The finding of a
violation
The
Court does not lose sight of the fact that the domestic courts did
not expressly acknowledge that the treatment to which the applicant
had been subjected as a result of his detention in the Neman town
temporary detention unit had been in breach of Article 3 of the
Convention. They found that various aspects of the applicant’s
detention, having been in breach of the domestic legal requirements,
had caused the applicant “physical and mental suffering”
(see paragraph 26 above). However, the Court is prepared to accept
that by awarding the applicant compensation the Russian courts in
substance acknowledged that he had been subjected to ill-treatment
contrary to the guarantees of Article 3 of the Convention.
(β) The characteristics of the redress
The
next issue which needs to be determined by the Court is whether the
compensation awarded to the applicant amounted to sufficient redress.
On
this point, the Court notes that the applicant’s claims against
the detention unit management and the Treasury were allowed in part.
The domestic courts awarded him RUB 1,500, noting that in assessing
the amount of the compensation they had taken into account various
aspects, including the responsibility of the unit management for the
suffering caused to the applicant and the insufficiency of funds
which had prevented the management from providing the applicant with
appropriate conditions of detention. It may thus be concluded that
the applicant received at least partial compensation for the
treatment he had suffered.
In this connection the Court reiterates that the
question whether the applicant received reparation for the damage
caused – comparable to just satisfaction as provided for under
Article 41 of the Convention – is an important issue. The Court
has already had occasion to indicate that an applicant’s victim
status may depend on the level of compensation awarded at domestic
level on the basis of the facts about which he or she complains
before the Court (see Cocchiarella v. Italy [GC], no.
64886/01, § 93, ECHR 2006 V, with further references).
Whether the amount awarded may be regarded as reasonable, however,
falls to be assessed in the light of all the circumstances of the
case. These include also the value of the award judged in the light
of the ordinary living standards and the general level of incomes in
the State concerned and the fact that the remedy in the national
system is closer and more accessible than an application to the Court
(see Scordino, cited above, §§ 206 and 268, and
Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October
2004, with further references).
Turning
to the facts of the present case, the Court observes that it is
unable to conclude whether the amount of compensation awarded to the
applicant could have been considered sufficient in domestic terms.
The parties did not produce any relevant information in this
regard. However, the Court’s task in the present case is
not to review the general practice of the domestic courts in awarding
compensation for inhuman conditions of detention and not to set
certain monetary figures which would satisfy the requirements of
“adequate and sufficient redress” but to determine, in
the circumstances of the case, whether the amount of compensation
awarded to the applicant was such as to deprive him of “victim
status” in view of his complaint under Article 3 of the
Convention pertaining to his detention in the Neman town temporary
detention unit.
In
this connection the Court considers that the duration of the
applicant’s detention in the Neman town detention unit and the
reasons given by the domestic courts in making an award in respect of
that detention are among the factors to be taken into account in
assessing whether the domestic award could be considered as adequate
and sufficient redress (see, mutatis mutandis, Staykov v.
Bulgaria, no. 49438/99, §§ 91-93, 12 October 2006).
The Court observes, and it was not disputed by the
parties, that the aggregate length of the applicant’s detention
in the Neman town detention unit amounted to three months and
thirteen days. It further notes that on 6 April 2004 the Neman
Town Court took into account a number of factors in making an award
of RUB 1,500. Those factors were: the duration of the applicant’s
detention, “the level of physical and mental suffering”
endured by him, the degree of responsibility of the unit management
for the suffering caused to the applicant and the lack of financial
resources.
The
Court is mindful that the task of making an estimate of damages to be
awarded is a difficult one. It is especially difficult in a case
where personal suffering, whether physical or mental, is the subject
of the claim. There is no standard by which pain and suffering,
physical discomfort and mental distress and anguish can be measured
in terms of money. The Court does not doubt that the domestic courts
in the present case, with every desire to be just and eminently
reasonable, attempted to assess the cumulative effect which the
conditions of detention had had on the applicant’s well-being
(see, mutatis mutandis, Dougoz v. Greece, no. 40907/98,
§ 46, ECHR 2001-II) and to determine the level of physical
suffering, emotional distress, anxiety or other harmful effects
sustained by the applicant by reason of his detention in those
conditions (see Nardone v. Italy (dec.), no. 34368/02,
25 November 2004). However, the Court cannot overlook the fact
that the amount of RUB 1,500 awarded for more than three months of
detention, that is, a rate of RUB 14.5 per day, was substantially
lower than what it generally awards in comparable Russian cases (see,
for example, Labzov v. Russia, no. 62208/00, 16 June 2005, and
Kantyrev v. Russia, no. 37213/02, 21 June 2007).
In
this connection the Court reiterates that, while emphasising the
importance of a reasonable amount of just satisfaction being offered
by the domestic system for the remedy in question to be considered
effective under the Convention, it has held on a number of occasions
that a wider margin of appreciation is left to the domestic courts in
assessing the amount of compensation to be paid in a manner
consistent with its own legal system and traditions and consonant
with the standard of living in the country concerned, even if that
results in awards of amounts that are lower than those fixed by the
Court in similar cases (see Cocchiarella, cited above, § 80,
and the finding in paragraph 72 above). However, the Court has also
stressed that when awarding compensation for non-pecuniary damage the
domestic courts have to justify their decision by giving sufficient
reasons (see Scordino (no. 1), cited above, §
204).
In this regard the Court observes that the town and
regional courts did not rely on any factors other than the degree of
responsibility of the management and its lack of financial resources
as reasons justifying the reduced compensation. The Court accepts
that, applying the compensatory principle, national courts might make
an award taking into account the motives and conduct of the defendant
and making due allowance for the circumstances in which the wrong was
committed. However, it reiterates its finding made in a number of
cases that financial or logistical difficulties, as well as the lack
of a positive intention to humiliate or debase the applicant, may not
be cited by the domestic authorities as circumstances relieving them
of their obligation to organise the State’s penitentiary system
in such a way as to ensure respect for the dignity of detainees (see,
among other authorities, Mamedova v. Russia, no. 7064/05, §
63, 1 June 2006). The same logic applies to domestic courts’
reasoning in awarding damages when entertaining actions against a
State in respect of its tortious conduct. The Court finds it
anomalous for the domestic courts to decrease the amount of
compensation to be paid to the applicant for a wrong committed by the
State by referring to the latter’s lack of funds. It considers
that in circumstances such as those under consideration the means
available to the State should not be accepted as mitigating its
conduct, and are thus irrelevant in assessing damages under the
compensatory criterion. Furthermore, the Court is of the opinion that
the domestic courts, as the custodians of individual rights and
freedoms, should have felt it their duty to mark their disapproval of
the State’s wrongful conduct to the extent of awarding an
adequate and sufficient quantum of damages to the applicant, taking
into account the fundamental importance of the right of which they
had found a breach in the present case, even if they considered that
breach to have been an inadvertent rather than an intended
consequence of the State’s conduct. As a corollary this would
have conveyed the message that the State may not set individual
rights and freedoms at nought or circumvent them with impunity.
In
conclusion, taking into account the absence of a reasonable relation
of proportionality between the amount of compensation awarded to the
applicant and the circumstances of the case and the domestic courts’
reasoning in making the award, the Court considers that the redress
was insufficient and manifestly unreasonable having regard to the
Court’s case-law (see paragraph 75 above). As the second
condition – appropriate and sufficient redress – has not
been fulfilled, the Court finds that the applicant in the instant
case may still claim to be a “victim” of a breach of his
rights under Article 3 of the Convention on account of his detention
in the Neman town detention unit. Accordingly, this objection by
the Government must be dismissed.
(b) Other grounds for declaring this
complaint inadmissible
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
The
Court reiterates that the applicant was detained at
the Neman town detention unit twelve times over a period of
fifteen months between 16 August 2001 and 12 November 2002; the
aggregate period of his detention amounted to three months and
thirteen days (see paragraph 19 above).
The
Court further observes that in the proceedings seeking compensation
for damage, the domestic courts found that the applicant’s
“right to be detained in the temporary detention unit in
accordance with the established rules and regulations [had been]
breached” and that he had sustained “physical and mental
suffering” as result of his detention in the Neman town
detention unit. In particular, they found that he had been held in
poor sanitary conditions in insufficiently lit, damp, stuffy and
overcrowded cells to which he was confined for 24 hours a day,
usually with four to seven other individuals, that he had had limited
access to a toilet and no access to bathing or any other facilities
in order to maintain even basic hygiene, that he had been given food
only once a day and that he had not had an individual sleeping place
(see paragraph 26 above). The Government did not dispute the findings
of the domestic courts.
In
these circumstances, the Court considers that the distress and
hardship endured by the applicant exceeded the unavoidable level of
suffering inherent in detention and went beyond the threshold of
severity under Article 3 (see, for similar reasoning, Kantyrev,
cited above, §§ 52-53, and Guliyev v. Russia, no.
24650/02, § 43, 19 June 2008).
Accordingly,
there has been a violation of Article 3 of the Convention on account
of the applicant’s detention in the Neman town detention unit,
which the Court considers to be inhuman and degrading within the
meaning of this provision.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION IN
FACILITY NO. IZ-39/1 IN KALININGRAD
The
applicant complained that his detention from 24 August 2001 to 17
April 2003 in detention facility no. IZ-39/1 in Kaliningrad, in
appalling conditions, had been in breach of Article 3 of the
Convention. Article 3 is cited above.
A. Submissions by the parties
The Government, citing the information provided by the
director of facility no. IZ-39/1, submitted that the applicant had at
all times been provided with an individual sleeping place as the
number of detainees in the cell had corresponded to the number of
bunks. They further contended that the remaining aspects of the
applicant’s conditions of detention (bedding, compliance with
sanitary norms, lighting, etc.) had been satisfactory.
The
applicant insisted that his detention in overcrowded cells had been
unbearable. It was further exacerbated by unsatisfactory sanitary
conditions, inability to take a shower regularly, insufficient
lighting, etc. He stressed that he had raised the issue of the
appalling conditions of detention before various domestic
authorities. The complaints had been to no avail.
B. The Court’s assessment
1. Admissibility
The Court notes that the applicant’s complaint
is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
The
Court notes that the parties have disputed certain aspects of the
conditions of the applicant’s detention in facility no. IZ-39/1
in Kaliningrad. However, there is no need for the Court to establish
the veracity of each and every allegation, because it finds a
violation of Article 3 on the basis of facts presented to it
which the respondent Government did not dispute.
The
focal point for the Court’s assessment is the living space
afforded to the applicant in the detention facility. The main
characteristic which the parties did agree upon was the size of the
fourteen cells in which the applicant had been detained. The
applicant claimed that the number of detainees in the cells had
considerably exceeded their design capacity. The Government
disagreed.
The
Court notes that the Government, in their plea concerning the number
of detainees, relied on certificates issued by the facility director
more than three years after the applicant’s detention in that
facility had come to an end. According to the findings of the
Tsentralniy District Court of 24 November 2003, the accuracy of which
was never challenged by the Government, there were no data available
on the number of inmates detained together with the applicant (see
paragraph 38 above). Despite this fact the Government, without giving
any explanation, submitted that the number of inmates had not
exceeded the number of sleeping places. In this connection the Court
observes that the Government did not refer to any source of
information which would have allowed that assertion to be verified.
It was open to the Government to submit copies of registration logs
showing the names of the inmates detained with the applicant.
However, no such documents were presented. In this connection the
Court notes that on several previous occasions when the Government
have failed to submit original records, the Court has held that
documents prepared after a considerable period of time cannot be
viewed as sufficiently reliable given the length of time that has
elapsed (see, among recent authorities, Novinskiy v. Russia,
no. 11982/02, § 105, 10 February 2009). The Court
is of the view that these considerations hold true in the present
case. The certificates prepared by the Russian authorities more than
three years after the events in question cannot be regarded as
sufficiently reliable sources of data. The Court is therefore not
convinced by the Government’s submission.
In
this connection the Court reiterates that Convention proceedings,
such as those arising from the present application, do not in all
cases lend themselves to a rigorous application of the principle
affirmanti incumbit probatio (he who alleges something must
prove that allegation), as in certain instances the respondent
Government alone have access to information capable of corroborating
or refuting allegations. A failure on a Government’s part to
submit such information without a satisfactory explanation may give
rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations (see Ahmet Özkan and Others
v. Turkey, no. 21689/93, § 426, 6 April 2004).
Having
regard to the principle cited above, together with the fact that the
Government did not submit any convincing relevant information, and
taking into account the domestic courts’ findings pertaining to
the applicant’s action in tort (see paragraph 38 above), the
Court will examine the issue concerning the number of inmates in the
cells in facility no. IZ-39/1 on the basis of the applicant’s
submissions.
According
to the applicant, he was usually afforded less than two square metres
of personal space throughout his detention. In this connection the
Court considers it necessary to note that despite the fact that the
Tsentralniy District Court was unable to establish the exact number
of inmates detained together with the applicant, its findings in
relation to the number of sleeping places in the smaller cells in
which the applicant had been detained nevertheless support the
latter’s assertion of a lack of personal space (see paragraph 38
above, when the District Court confirmed that the cells, measuring up
to 8 square metres, had six sleeping places). The Court thus observes
that even the domestic standard of a minimum of four square metres
per detainee (see paragraph 51 above) was not met.
Irrespective
of the reasons for the overcrowding, the Court reiterates that it is
incumbent on the respondent Government to organise its penitentiary
system in such a way as to ensure respect for the dignity of
detainees, regardless of financial or logistical difficulties (see
Mamedova v. Russia,
no. 7064/05, § 63, 1 June 2006).
The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
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; and Peers v. Greece,
no. 28524/95, §§ 69 et seq., ECHR 2001-III). More
specifically, the Court reiterates that it recently found a violation
of Article 3 on account of an applicant’s detention in
overcrowded conditions in the same detention facility (see Mayzit,
cited above, §§ 34-43).
The
Court notes that the applicant’s situation resulting from
insufficient personal space was further exacerbated by the fact that
he was not allowed to shower more than once every ten days during the
entire period of his detention. Furthermore, the cells in which the
applicant was held had no window in the proper sense of the word. At
least until the end of 2002 they were covered with a layer of thick
bars with so-called “eyelashes” and subsequently with
latticed partitions to ensure, as the Government put it, “sound
and visual insulation”. Both arrangements cut off fresh air and
also significantly reduced the amount of daylight that could
penetrate the cells. The colour photographs of the two cells in which
the applicant was detained in 2001 and 2002 support the applicant’s
submissions to that effect.
The
Court observes that in the present case there is no indication that
there was a positive intention to humiliate or debase the applicant.
However, the Court finds that the fact that the applicant was obliged
to live, sleep and use the toilet in the same cell as so many other
inmates in these unsatisfactory conditions was itself sufficient to
cause distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention, and to arouse in him
feelings of fear, anguish and inferiority capable of humiliating and
debasing him.
The
Court finds, accordingly, that there has been a violation of Article
3 of the Convention because the applicant was subjected to inhuman
and degrading treatment on account of the conditions of his detention
in facility no. IZ-39/1 in Kaliningrad.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT’S ABSENCE FROM THE HEARINGS IN HIS
CIVIL CASES
The
applicant complained that the courts had refused to secure his
attendance at the hearings in the two sets of proceedings concerning
the conditions of his detention and in the proceedings pertaining to
his defamation action. In addition, the applicant argued that he had
not been served with copies of various documents presented by the
defendant to the Tsentralniy District Court in the proceedings
concerning his detention in facility no. IZ-39/1. He relied on
Article 6 § 1, which provides, in so far as relevant, as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public ... hearing
... by [a] ... tribunal ...”
A. Submissions by the parties
The
Government argued that the applicant’s absence had been
objectively justified by the fact that he had been serving his prison
sentence in a correctional colony and that it had been impossible to
transport him to the hearings due to the absence of an established
legal procedure for the transfer of detainees to hearings in civil
cases. However, he had been informed of his procedural rights
including the right to be represented, of which he did not make use.
The
applicant averred that he had not been brought to the hearings
because Russian law on civil procedure did not guarantee such a
right. He further stated that he had been unable to appoint counsel
because he had limited financial resources. At the same time Russian
law did not provide for free legal aid in similar cases.
B. The Court’s assessment
1. Admissibility
The
Court considers that the applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
2. Merits
(a) Absence from the hearings
The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274). The
Court has previously found a violation of the right to a “public
and fair hearing” in a case where a Russian court, after having
refused leave to appear to the imprisoned applicants, who had wished
to make oral submissions on their defamation claim, failed to
consider other legal possibilities for securing their effective
participation in the proceedings (see Khuzhin
and Others v. Russia, no. 13470/02,
§§ 53 et seq., 23 October 2008). It also found
a violation of Article 6 in a case where a Russian court refused
leave to appear to an imprisoned applicant who had wished to make
oral submissions on his claim that he had been ill-treated by the
police. Despite the fact that the applicant in that case was
represented by his wife, the Court considered it relevant that his
claim had been largely based on his personal experience and that his
submissions would therefore have been “an important part of the
plaintiff’s presentation of the case and virtually the only way
to ensure adversarial proceedings” (see Kovalev v. Russia,
no. 78145/01, § 37, 10 May 2007).
The
Court observes that the Russian Code of Civil Procedure provides for
the plaintiff’s right to appear in person before a civil court
hearing his claim (see paragraph 53). However, neither the Code of
Civil Procedure nor the Penitentiary Code makes special provision for
the exercise of that right by individuals who are in custody, whether
they are in pre-trial detention or are serving a sentence. In the
present case the applicant’s requests for leave to appear were
denied precisely on the ground that the domestic law did not make
provision for convicted persons to be brought from correctional
colonies to the place where their civil claim was being heard. The
Court reiterates that Article 6 of the Convention does not guarantee
the right to personal presence before a civil court but rather a more
general right to present one’s case effectively before the
court and to enjoy equality of arms with the opposing side. Article 6
§ 1 leaves to the State a free choice of the means to be used in
guaranteeing litigants these rights (see Steel and Morris v. the
United Kingdom, no. 68416/01, §§ 59-60, ECHR
2005-II).
The issue of the exercise of procedural rights by
detainees in civil proceedings has been examined on several occasions
by the Russian Constitutional Court, which has identified several
ways in which their rights can be secured (see paragraph 55 above).
It has consistently emphasised representation as an appropriate
solution in cases where a party cannot appear in person before a
civil court. Given the obvious difficulties involved in transporting
convicted persons from one location to another, the Court can in
principle accept that in cases where the claim is not based on the
plaintiff’s personal experiences, as in the above-mentioned
Kovalev case, representation of the detainee by an advocate
would not be in breach of the principle of equality of arms.
In
the instant case, given the nature of his claims in relation to the
conditions of his detention in the Neman town temporary detention
unit (see paragraphs 26 and 28 above) and facility no. IZ-39/1 (see
paragraphs 38 and 41) and to the defamation action (see paragraphs 48
and 50 above), the applicant sought leave to appear before the civil
courts, which was refused him. The courts examined the applicant’s
civil claims, finding that his attendance was not required.
The
Court reiterates, and the Government did not argue otherwise, that
the applicant insisted that he wished to be present at the hearings,
arguing, among other things, that he did not have the means to pay
for a lawyer. The Court observes that the option of legal aid was not
open to the applicant (see paragraph 53 above). In such a situation
the only possibility for him was to appoint a relative, friend or
acquaintance to represent him in the proceedings. However, as is
clear from the domestic courts’ judgments, after the courts had
refused the applicant leave to appear they did not consider how to
secure his effective participation in the proceedings. They did not
inquire whether the applicant was able to designate a representative
and in particular whether, having regard to the time which he had
already spent in detention, he still had a person willing to
represent him before the domestic courts and, if so, whether he had
been able to contact that person and give him authority to act.
Moreover, it appears that on a number of occasions in the three sets
of proceedings the applicant did not learn that he had been refused
leave to attend the hearing until after the hearing had taken place
(see paragraphs 24 and 35 above) or until he received a copy of the
judgment in which his claim was dismissed on the merits (see
paragraphs 26, 28, 38, 41, 48 and 50 above). Hence, the applicant was
obviously unable to decide on a further course of action for the
defence of his rights until such time as the decision refusing him
leave to appear was communicated to him (see Khuzhin
and Others v. Russia, no. 13470/02,
§ 107, 23 October 2008). The appeal courts did
nothing to remedy that situation.
The
Court further reiterates that the domestic courts refused the
applicant leave to appear, relying on the absence of any legal norm
requiring his presence. In this connection, the Court is also mindful
of another possibility which was open to the domestic courts as a way
of securing the applicant’s participation in the proceedings.
They could have held a session in the applicant’s correctional
colony (see paragraph 56 above). The Court finds it inexplicable that
in none of the three sets of proceedings did the domestic courts even
consider that option.
The
Court is therefore bound to conclude that the fact that the
applicant’s civil claims were heard without his being present
or represented deprived him of the opportunity to present his case
effectively before the courts (see, mutatis mutandis, Yakovlev
v. Russia, no. 72701/01, §§ 19 et seq., 15 March
2005; Groshev v. Russia, no. 69889/01, §§ 27 et
seq., 20 October 2005; and Mokrushina v. Russia, no.
23377/02, § 22, 5 October 2006).
Having
made this finding, the Court still considers it necessary to address
the other aspect referred to, pertaining to the nature of the
applicant’s claims in the two sets of proceedings concerning
the conditions of his detention. The Court does not lose sight of the
fact that the applicant’s claims in those two sets of
proceedings were, to a large extent, based on his personal
experience. In such circumstances, the Court is not convinced that
even the representative’s appearance before the courts could
have secured the effective, proper and satisfactory presentation of
the applicant’s case. The Court finds that the applicant’s
testimony describing the conditions of his detention, of which only
the applicant himself had first-hand knowledge, would have
constituted an indispensable part of the plaintiff’s
presentation of the case (see Kovalev, cited above, § 37,
and, by contrast, Kozlov v. Russia (dec.), no. 30782/03, 17
September 2009). Only the applicant himself could describe the
conditions and answer the judges’ questions, if any. The
Court’s finding to this effect is supported by the Neman Town
Court’s decision of 20 August 2003 authorising the applicant’s
transfer to the courthouse (see paragraph 22 above). In particular,
the Town Court reasoned that it was necessary to hear evidence from
the applicant in person. However, the Court considers it odd that
despite a direct order from the Town Court requiring the applicant to
be brought to the hearing, the management of the correctional colony
refused to comply, relying on their own assessment of the domestic
legal norms (see paragraph 23 above). Even more striking is the fact
that following the colony management’s refusal to ensure the
applicant’s presence, the Town Court, having failed to take any
steps to discipline the management, cited its refusal in response to
the applicant’s subsequent request to be brought to a hearing
(see paragraph 24 above).
In conclusion, the Court finds that the principle of
equality of arms was not observed in the three sets of civil
proceedings under consideration, owing to the domestic courts’
repeated refusal to secure the applicant’s attendance at the
proceedings concerning the conditions of his detention and their
failure to ensure the effective representation of his interests in
the proceedings pertaining to the defamation action.
There
has therefore been a violation of Article 6 § 1
of the Convention.
(b) Failure to serve documents on the
applicant
In addition, the parties disputed whether the
applicant had been served with copies of materials presented by the
defendant to the Tsentralniy District Court in the proceedings
concerning the conditions of detention in facility no. IZ-39/1. In
this connection the Court reiterates its finding that the fairness of
that set of civil proceedings was undermined by the applicant’s
absence from the hearings before the domestic courts (see paragraph 112
above). The Court therefore considers it unnecessary to examine
separately whether the fairness of the proceedings was also breached
by the domestic courts’ alleged failure to communicate to the
applicant the complete set of documents submitted by the defendant
(see Komanický v. Slovakia, no. 32106/96, § 56,
4 June 2002, and Vladimir Romanov v. Russia,
no. 41461/02, § 107, 24 July 2008).
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE ABSENCE OF LEGAL ASSISTANCE ON APPEAL IN THE
APPLICANT’S CRIMINAL CASE
The
applicant complained that his defence rights had been violated by the
appeal court which had heard the criminal case against him as it had
failed to appoint legal-aid counsel to represent him. He relied on
Article 6 §§ 1 and 3 (c) of the Convention, which reads as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
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. Submissions by the parties
The
Government submitted that in February 2003 the applicant had asked
the Kaliningrad Regional Court to appoint legal-aid counsel to
represent him in the appeal proceedings. The request was not examined
as the Regional Court believed that the Russian Code of Criminal
Procedure did not provide for mandatory legal representation for
defendants at the appeal stage. The Government stressed that the
Regional Court’s approach had been based on well-established
judicial practice. However, they further submitted that the
Constitutional Court of the Russian Federation, in its decision of 18
December 2003, had criticised that interpretation of the domestic
legal norms as being erroneous. Following that decision by the
Constitutional Court, the failure of an appeal court to guarantee the
defendant’s right to legal assistance constituted grounds for
the institution of supervisory-review proceedings. The Government
drew the Court’s attention to the fact that the applicant had
never filed a supervisory-review application.
The
applicant submitted that he should have been provided with the
assistance of legal-aid counsel during the appeal proceedings as the
case had been a complex one and since he had no legal training or
background he had been unable to represent his interests effectively,
whereas the prosecution had been represented by professional lawyers
who were experts in the field of criminal law.
The Court’s assessment
Admissibility
The Court takes note of the Government’s
submission that the applicant had not sought the institution of
supervisory-review proceedings with a view to remedying the defects
which occurred at the appeal stage. In so far as the Government’s
objection can be understood as an allegation that the applicant
failed to exhaust domestic remedies, the Court notes that it
has already found in a number of cases against Russia that
supervisory-review proceedings are not an effective remedy for the
purpose of Article 35 § 1 of the Convention (see Gusinskiy
v. Russia (dec.), no. 70276/01, 22
May 2003; Berdzenishvili v. Russia
(dec.), no. 1697/03, 29 January
2004; and, more recently, Sutyagin v.
Russia (dec.), no. 30024/02, 8 July
2008). In addition, the Court does not lose sight of the fact that,
apart from a passing reference to the possibility of lodging a
supervisory-review application, the Government did not provide the
Court with any evidence (copies of judgments, etc.) confirming the
existence of automatic review of final convictions in cases where
legal assistance was denied to defendants at the appeal stage. In the
circumstances, the Court rejects the Government’s
non-exhaustion objection.
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
Merits
The
Court reiterates that sub-paragraph (c) of paragraph 3 of Article 6
attaches two conditions to an accused’s right to receive legal
aid. The first, “lack of sufficient means to pay for legal
assistance”, is not in dispute in the present case. The only
issue before the Court is therefore whether the “interests of
justice” required that the applicant be granted such assistance
free.
The
Court observes that a similar situation has already been examined in
another case against Russia in which the applicant, who had been
convicted of murder and sentenced to thirteen years’
imprisonment, complained of his inability to obtain legal
representation during the appeal proceedings in the criminal case
against him (see Shulepov v. Russia, no. 15435/03, §§
34-39, 26 June 2008). In that case, the Court, taking into account
three factors – (a) the fact that the jurisdiction of appeal
courts in Russia extended to both legal and factual issues and that
they were thus empowered to fully review the case and to consider
additional arguments which had not been examined in the
first-instance proceedings, (b) the seriousness of the charges
against the applicant and (c) the severity of the sentence which he
had faced – found that the assistance of a legal-aid lawyer at
that stage was essential for the applicant, as “the former
could have effectively drawn the appeal court’s attention to
any substantial argument in the applicant’s favour, which could
have influenced the court’s decision”. In addition, the
Court, finding that the interests of justice demanded that, in order
to receive a fair hearing, the applicant should have benefited from
legal representation at the appeal hearing, held as follows:
“37. The Court further notes that
according to the Russian Code of Criminal Proceedings, as interpreted
by the Russian Constitutional Court, the onus of appointing a legal
aid lawyer rested upon the relevant authority at each stage of the
proceedings.
38. Thus it was incumbent on the judicial
authorities to appoint a lawyer for the applicant to ensure that the
latter received the effective benefit of his rights, notwithstanding
the fact that he had failed to request this explicitly. In this
respect the Court notes that the applicant never unequivocally waived
his defence rights. However, no attempt whatsoever had been made to
appoint a lawyer or to adjourn the appeal hearing in order to secure
the presence of a lawyer later.
39. In view of the above considerations the
Court finds that the proceedings before the Sverdlovsk Regional Court
did not comply with the requirements of fairness. There has,
therefore, been a breach of Article 6 § 1 in
conjunction with Article 6 § 3 (c) of the Convention.”
The
Court considers that its reasoning in the case of Shulepov v.
Russia (cited above) is fully applicable to the circumstances of
the present case. The Court takes cognisance of the wide powers that
the Kaliningrad Regional Court, acting on appeal, had over the
applicant’s case, including the power to dispose of his appeal.
It also observes that the Regional Court’s decision was final.
The Court further accepts the applicant’s assertion that the
legal issues in his criminal case were of particular complexity,
involving determination of the constituent elements of a number of
aggravated criminal offences, assessment of the degree of liability
of several co-defendants, including their level of personal
culpability, establishment of a variety of mitigating and aggravating
circumstances and examination of the negative of the defences raised.
The Court also attributes particular weight to the fact that the
applicant did not himself formulate the grounds for his appeal (see
paragraph 15 above). The Court is therefore of the view that without
the services of a legal practitioner the applicant was not in a
position to articulate the arguments raised in the appeal statement
and could not competently address the court on the legal issues
involved, and thus was unable to defend himself effectively (see
Maxwell v. the United Kingdom, 28 October 1994, § 38,
Series A no. 300 C, with further references). Of even greater
relevance, however, is the fact that the applicant had been sentenced
to nine years’ imprisonment. For the applicant therefore the
issue at stake was an extremely important one (ibid., § 38).
In
sum, given the nature of the proceedings, the wide powers of the
Kaliningrad Regional Court, the limited capacity of an unrepresented
appellant to present a legal argument and, above all, the importance
of the issue at stake in view of the severity of the sentence, the
Court considers that the interests of justice required that the
applicant be granted legal aid for representation at the hearing of
his appeal. The Court also does not lose sight of the Government’s
submission that the Russian Constitutional Court characterised as
erroneous the appeal courts’ practice of denying legal
assistance to defendants.
The
Court therefore finds that there has been a violation of Article 6
§ 1 in conjunction of Article 6 § 3 (c) of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,500 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that the applicant had received “full
reparation” at the domestic level in respect of his complaints
related to his detention in the Neman town detention unit. The
domestic courts had allowed his action and awarded him RUB 1,500.
They further submitted that, in any event, the applicant’s
claims were manifestly ill-founded.
The
Court reiterates, firstly, that the applicant cannot be required to
furnish any proof of the non-pecuniary damage he sustained (see
Gridin v. Russia, no. 4171/04, § 20, 1 June
2006). The Court further observes that it has found a combination of
particularly grievous violations in the present case. The Court
accepts that the applicant suffered humiliation and distress on
account of the inhuman and degrading conditions of his detention in
the Neman town detention unit and detention facility no. IZ-39/1 in
Kaliningrad. In addition, he was unable to present his case
effectively in the three sets of civil proceedings and did not
benefit from legal assistance in the appeal proceedings in his
criminal case. In these circumstances, the Court considers that the
applicant’s suffering and frustration cannot be compensated for
by a mere finding of a violation. Making its
assessment on an equitable basis, it awards the applicant the sum
claimed in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant also asked the Court to award any sum it considered
sufficient for the costs and expenses incurred before the domestic
courts and those incurred in the Strasbourg proceedings.
The
Government did not comment.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the applicant did not
indicate the amount of costs and expenses claimed and did not provide
any evidence (receipts, vouchers, etc.) on the basis of which the
Court could assess the quantum of the expenses incurred. The Court
therefore makes no 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
conditions of the applicant’s detention in the Neman town
temporary detention facility and detention facility no. IZ 39/1 in
Kaliningrad, the breach of the equality-of-arms principle in the
three sets of civil proceedings to which the applicant was a party
and the absence of legal assistance in the appeal proceedings in the
criminal case against him admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant’s
detention in the Neman town detention facility;
Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant’s
detention in detention facility no. IZ-39/1 in Kaliningrad;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the three sets of civil
proceedings on account of the domestic courts’ failure to
secure the applicant’s attendance or to ensure the effective
representation of his interests;
Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention
pertaining to the failure to serve on the applicant copies of
documents submitted by the defendant in the proceedings concerning
the conditions of detention in facility no. IZ-39/1;
Holds that there has been a violation of Article
6 § 1 in conjunction with Article 6 § 3 (c) of the
Convention in respect of the criminal proceedings against the
applicant on account of the lack of legal aid at the appeal stage;
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 10,500 (ten
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of the 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.
Done in English, and notified in writing on 17 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
