AS TO THE ADMISSIBILITY OF
Application no. 47095/99
by Valeriy Yermilovich KALASHNIKOV
The European Court of Human Rights (Third Section), sitting on 18 September 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr L. Loucaides,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr A. Kovler, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 1 December 1998 and registered on 26 March 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the parties' oral submissions at the hearing on 18 September 2001,
Having deliberated, decides as follows:
The applicant, Valeriy Yermilovich Kalashnikov, is a Russian national, born in 1955 and living in Moscow. He is represented before the Court by Mrs K. Moskalenko and Mr N. Sonkin, lawyers' practising in Moscow. The respondent Government are represented by Mr P. Laptev, the Russian Federation's representative at the Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
a) The criminal proceedings
At the material time the applicant was the president of the North East Commercial Bank (Северо – Восточный Акционерный Банк).
On 8 February 1995 he became a suspect in the embezzlement of the bank's funds and was subjected to a preventive measure in the form of a ban on leaving a specified place. The criminal case was assigned the number 48529.
The applicant alleges that he learned of the criminal proceedings against him only the next day and that, on 8 February 1995, he was questioned by the investigative authorities as a witness.
On 17 February 1995 he was formally charged with misappropriating 2,050,000 shares of another company.
On 29 June 1995, with a prosecutor's approval, the applicant was arrested and placed in detention on remand on the ground that he had obstructed the establishment of the truth in the criminal proceedings. His detention was subsequently extended by the competent prosecutor on unspecified dates.
On 4 July 1995, 31 August 1995 and 26 September 1995, the applicant's defence lawyer filed applications for release from custody with the Magadan City Court (Магаданский городской суд) which rejected them on 14 July 1995, 9 September 1995 and 4 November 1995, respectively.
The applicant contends that from August 1995 until November 1995 no investigative activity took place as the two investigators in charge of the case were on holiday and the person to whom the case was temporarily assigned undertook no action.
On 14 December 1995 the applicant was charged with 8 additional counts relating to the embezzlement of his bank's funds.
On 6 February 1996 the preliminary investigation of the charges against the applicant was terminated and the case was sent to the Magadan City Court.
On 1 March 1996 the applicant filed with the City Court a request for his release from custody.
On 27 March 1996 the City Court decided to remit the case to the Magadan Regional Prosecutor for further investigation. The applicant submits that the City Court informed him that his request for release had been examined and that he was to remain in custody.
The Regional Prosecutor filed an appeal against the decision to remit the case for further investigation with the Magadan Regional Court (Магаданский областной суд) which, on 29 April 1996, upheld the decision of 27 March 1996.
Following an additional investigation as of 15 May 1996, the Regional Prosecutor remitted the case to the City Court on 19 June 1996.
In the meantime, on 16 May 1996, the applicant filed an application for release from custody with the City Court in which he stated that he was being held in poor conditions and that his health had deteriorated. His application for release was refused on 26 May 1996.
On 23 June 1996 the applicant filed another request for release.
On 11 November 1996 the City Court began its examination of the applicant's case. The applicant submits that on the same day it rejected his request for release filed on 23 June 1996.
At the hearing on 27 December 1996 the applicant asked the City Court to release him from custody on medical grounds. He stated that there were 21 inmates in his cell with just 8 beds; there was no ventilation in the cell where everybody smoked; the television was constantly blaring and he had contracted scabies. Upon receiving a medical certificate confirming the existence of the disease, the City Court adjourned the hearing until 14 January 1997. It refused to release the applicant from custody on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth while at liberty.
The examination of the applicant's case by the City Court lasted until 23 April 1997.
On 7 May 1997 the case was adjourned due to the removal from office of the presiding judge for improper conduct unrelated to the applicant's case.
On 15 June 1997 the applicant filed another request for release, referring to the poor conditions in which he was being detained.
In July 1997 the applicant's case was assigned to another judge who scheduled a hearing for 8 August 1997. On that day the hearing was postponed because the defence lawyer could not attend for health reasons. The applicant's request for release was rejected on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth in the criminal case.
The applicant's further request for release from custody filed on 21 September 1997 was refused on 21 October 1997.
On 22 October 1997 the applicant complained to the Magadan Regional Court about his case, asking for its transfer from the City Court to the Regional Court. He also submitted a complaint to the Supreme Court of Russia (Верховный Суд Российской Федерации) which forwarded it to the Magadan Regional Court for examination. By letters of 31 October 1997 and 25 November 1997, the Regional Court informed the applicant that there was no reason for it to assume jurisdiction and suggested he turn to the City Court with any questions relating to his case. It also requested the City Court to take measures for the examination of the applicant's case.
According to the applicant, on 21 November 1997 he sent complaints to different authorities, in particular the Office of the President of the Russian Federation, the Magadan City Court, the High Qualification Board of Judges (Высшая квалификационная коллегия судей Российской Федерации) – a body dealing with questions of professional competence – and the Prosecutor General. In his complaints, he submitted, inter alia, that he was being held in appalling conditions without any decision on the substance of the charges, that he had contracted various skin diseases, that his toenails had fallen off and that he was suffering from a heart condition.
On 5 February 1998 the president of the Magadan City Court informed the applicant that the court would resume the consideration of his case before 1 July 1998, referring to its complexity and the heavy work load of the judges.
On 11 February 1998 the Magadan Regional Court forwarded to the City Court 11 complaints by the applicant, which it had received from the Prosecutor General, the Supreme Court and other authorities.
On 23 February 1998 the applicant commenced a hunger strike with a view to drawing the attention of the authorities to his lengthy detention and the absence of court hearings, which he continued until 17 March 1998.
On 1 March 1998 the applicant complained about his case to the Office of the President of Russia and to a parliamentary committee of the State Duma, requesting their assistance in the transfer of his case to the Magadan Regional Court.
On 3 March 1998 the Department of Justice of the Magadan Region, in response to the applicant's complaint addressed to the Ministry of Justice of Russia, stated that the court would be able to deal with his case in the second half of 1998.
Meanwhile, the applicant lodged a request with the Constitutional Court (Конституционный Суд Российской Федерации) to review the constitutionality of the provisions of Articles 223-1 and 239 of the Code of Criminal Procedure concerning time-limits for the start of trial proceeedings. By letter of 10 March 1998, the Constitutional Court informed the applicant that, since the impugned provisions did not lay down any time-limits with regard to the length of detention while a case is being considered by the courts, his request could not be considered.
The applicant also complained to the High Qualification Board of Judges about the delay in the consideration of his case, which, by letter of 30 March 1998, asked the Magadan Regional Court to investigate the matter.
On 2 April 1998 the applicant filed a complaint with the Supreme Court about the delay in setting the date for his trial, in which he also referred to his poor conditions of detention. A copy of his complaint was sent to other authorities. All his complaints were forwarded by the addressee institutions to the Magadan City Court for examination.
On 13 April 1998 the Magadan Regional Court informed the applicant that the City Court had been requested to take measures for the consideration of his case. It also stated that the case was to be tried by the City Court and that the Regional Court could only act as a court of cassation.
On 25 May 1998 the applicant filed a petition with the City Court asking for his case to be transferred to the Regional Court for trial.
On 28 May 1998, by decision of the president of the Regional Court, the applicant's case was transferred to the Khasynskiy District Court (Хасынский районный суд) in order to expedite the proceedings.
On 11 June 1998 the applicant complained about the delay in starting court hearings to the High Qualification Board of Judges.
On 16 June 1998 the applicant filed a request for release from custody with the Khasynskiy District Court in which he stated that his health had deteriorated as a result of the overcrowding and the poor conditions in his cell in the detention facility.
On the same day, he sent an application to the Khasynskiy District Court asking it to transfer his case to the Magadan Reginal Court. He submitted that the transfer of his case to the Khasynskiy District Court was unlawful and that its distance from the city of Magadan would hamper an objective and fair examination of his case.
On 1 July 1998 the applicant complained to the Regional Court that the Khasynskiy District Court had not yet set a hearing date and asked it to expedite the proceedings.
On 3 July 1998 the case was remitted to the Magadan City Court as the applicant had expressed his disagreement with its transfer to the Khasynskiy District Court.
On 8 July 1998 the applicant received a letter from the Regional Court informing him that there were no grounds for it to act as a court of first instance or to assume jurisdiction in the case.
On 9 July 1998 the applicant requested the City Court to release him, referring to the poor conditions of detention.
On 31 July 1998 the applicant complained to the High Qualification Board of Judges about the prolonged failure of the City Court to examine his case. On 19 August 1998 his complaint was transmitted to the Magadan Regional Court with a request to provide information both on the complaint and on the work of the City Court. On 27 August 1998 the Regional Court forwarded the applicant's complaint to the City Court.
The applicant also submitted a complaint to the Magadan Regional Court about the delay in starting the trial hearings, which on 11 August 1998 transmitted the complaint to the City Court.
On 7 September 1998 the applicant filed another complaint with the High Qualification Board of Judges stating that all his previous complaints were sent by the Magadan Regional Court to the City Court without any measures being taken. On 23 September 1998 the applicant's complaint was forwarded to the Magadan Regional Court with a reminder about the request for information on the reasons for the prolonged delay in examining the applicant's case.
On 7 September 1998 the applicant also submitted a complaint about the delay in the proceedings to the Supreme Court.
On 5 October 1998 the applicant submitted further complaints to the Regional and High Qualification Boards of Judges.
On 13 November 1998 the City Court set the hearing date for 28 January 1999.
On 25 November 1998 the applicant complained to the High Qualification Board of Judges about the actions of the President of the Magadan City Court, apparently requesting the institution of criminal proceedings against him. On 22 December 1998 the complaint was forwarded for examination to the president of the Magadan Regional Court with a request to submit a report to the competent Qualification Board in case the applicant's allegations proved substantiated.
On 16 December 1998 the Magadan Regional Court forwarded another complaint by the applicant to the City Court.
On 18 January 1999 the applicant submitted to the City Court a request for release from custody.
On 28 January 1999 the Magadan City Court decided to send the applicant's case back to the prosecutor for further investigation due to the violation of procedural norms by the investigative authorities. These violations consisted of an incomplete presentation of the case materials to the accused at the end of the preliminary investigation, as well as an imprecise recording of file documents. The court refused the applicant's request for release having regard to the gravity of the charges against him and the danger of his obstructing the examination of the case while at liberty. The applicant lodged an appeal against the refusal with the Magadan Regional Court which, on 15 March 1999, dismissed it. The Regional Court however revoked the decision to send the case back to the investigative authorities as unfounded and ordered the City Court to proceed with the trial. In a separate decision, issued on the same day, it considered the lengthy delay unjustifiable in view of the fact that the case was not particularly complex, and requested the City Court to inform it within one month of the measures taken.
On 17 March 1999 the applicant submitted to the City Court another request for release from custody. On the same day he complained to the High Qualification Board of Judges about his lengthy detention without a court judgment.
On 22 March 1999 the applicant submitted a similar complaint to the Regional Qualification Board of Judges.
On 5 April 1999 the applicant filed another complaint with the High Qualification Board of Judges about the prolonged delay in the proceedings.
On 15 April 1999 the City Court resumed its examination of the applicant's case.
At the hearing on 20 April 1999 the prosecutor requested that, in view of the length of the applicant's detention, a psychiatric evaluation of the applicant be carried out in order to determine the state of his mental health.
The City Court granted this request and adjourned the hearing until 30 April 1999.
At the hearing on 30 April 1999 the applicant applied unsuccessfully for release from custody. He submitted that he was suffering from a lack of sleep. In his cell there were 18 people and inmates had to sleep in shifts. He further argued that he could not obstruct the establishment of the truth in his case as all the investigative measures had already been taken.
The prosecutor participating in the hearing asked the City Court to request the administration of the detention facility in which the applicant was being held to provide the applicant with conditions allowing normal sleep and rest during the court hearings. The prosecutor further stated that he would submit a similar request to the prosecutor in charge of supervising detention facilities.
The applicant submits that subsequently the competent prosecutor came to his cell, acknowledged that the conditions were poor, but stated that the situation in other cells in the detention facility was no better and that there was no money to improve the conditions.
At the same hearing the City Court granted the applicant's request to dispense one of his two lawyers from participating in the examination of the evidence.
At the hearing on 8 June 1999 the applicant requested his release. He stated that in his cell, where there were 18 inmates, he could not prepare himself adequately to testify before the trial court. He further submitted that he had contracted scabies twice and that his bed sheets were not changed. The applicant's request was rejected.
At the hearing on 16 June 1999 the applicant filed another request for release, referring to the conditions of his detention. He submitted that he had a fungal infection and that his body was covered with sores caused by bites from bugs infesting his bed. He was sharing his bed with two other inmates. Inmates could shower once every two weeks. The atmosphere in the cell was stifling as everybody smoked. He was feeling unwell and suffering from a heart condition. His weight had dropped from 96 kg to 67 kg. He further submitted that he could not obstruct the examination of this case if released.
The City Court ruled that the applicant's request be left unexamined, apparently because it was made outside the context of the hearing.
On 22 June 1999 the High Qualification Board of Judges removed the president of the Magadan City Court from office, as well as the president of the Regional Court and his two deputies, due to the delay in examining the applicant's case.
At the hearing before the City Court on 23 June 1999 the applicant stated that he was feeling unwell and that he could not participate. The court ordered a medical examination of the applicant by a commission of experts.
In their conclusions issued on an unspecified date in July 1999, the experts found that the applicant was suffering from neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis.
The experts considered that the treatment of these medial conditions did not require hospitalisation and that the the applicant could remain in the detention facility. They also considered that the applicant's condition of health allowed him to attend the court hearings and to give testimony.
At the hearing on 15 July 1999 the applicant requested the trial court to release him from custody. He stated that the court had nearly concluded the examination of the evidence and that he could not obstruct the establishment of the truth. His request was refused.
In a ruling issued on the same day, the City Court noted that in the period from 15 April until 15 July 1999 it had examined more than 30 applications submitted by the applicant, including repetetive applications on previously rejected motions. It noted the applicant had stated that he would testify only if his applications were granted and considered that such a position amounted to a deliberate attempt to delay the proceedings.
On 16 July 1999 the applicant made a request to permit his other lawyer to attend the court hearing for the presentation of concluding remarks. His request was refused on the ground that the lawyer had not participated in the preceding stage of the proceedings.
On 22 July 1999 the City Court rejected the applicant's request for hearing certain additional witnesses on his behalf as it had already ruled earlier on a similar request.
The applicant submits that throughout the proceedings the City Court rejected his applications for hearing additional witnesses on his behalf.
The City Court heard 9 of the 29 witnesses who were expected to appear before it. The testimonies of 12 absent witnesses, which had been given during the pre-trial investigation in the absence of the applicant or his lawyer, were read out in open court.
By a judgment of 3 August 1999, the City Court found the applicant guilty on one count and acquitted him on two counts contained in the indictment which had preferred 9 separate charges. It sentenced him to 5 years and 6 months' imprisonment in a correctional colony with a general regime, his term running from 29 June 1995. The City Court considered that the preliminary investigation had been of poor quality and that the investigators had unjustifiably attempted to increase the number of counts in the indictment. It also found an infringement of procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the relevant documents to the court. These shortcomings had had to be corrected at the trial, which had caused a delay. The court noted that, in the course of the investigation, there had been a lack of proper procedural supervision by those in charge of the investigation and the prosecutor's office of the Magadan Region.
In a separate ruling on the same day, the City Court decided to send part of the indictment back to the prosecutor for an additional investigation. The applicant appealed against the ruling to the Supreme Court, which on 30 September 1999 found the decision lawful.
The City Court judgment of 3 August 1999 was subject to appeal to the Regional Court within 7 days of its pronouncement. The applicant did not file an appeal in cassation as he considered that the Regional Court had contributed to his conviction and thus had no prospects of success. On 11 August 1999 the judgment of the City Court entered into force.
On 11 August 1999 the applicant submitted to the director of the detention facility where he was being held a request to transfer him to the logistical services team in the same facility to serve his sentence.
On 25 October 1999 the applicant lodged an extraordinary appeal with the President of the Supreme Court of Russia for a review of the City Court judgment. On 11 November 1999 the appeal was dismissed.
On 30 November 1999 the applicant filed another extraordinary appeal with the Supreme Court, which rejected it on 9 June 2000.
On 24 September 1999, in the continuing criminal proceedings, the preventive custody measure was replaced by a ban on leaving a specified place. However, he remained in custody, serving his original sentence.
On 29 September 1999 the proceedings concerning the remainder of the charges were terminated on the ground that the acts committed by the applicant did not constitute a criminal offence.
On 30 September 1999, however, a new charge relating to the misappropriation of property in his capacity as the bank's president was brought against the applicant.
On 19 October 1999, upon completion of the preliminary investigation, the competent prosecutor approved the bill of indictment and sent the case to the Magadan City Court for trial. The bill of indictment bore the original case no. 48529 and stated that the proceedings in that case had been initiated on 8 February 1995.
The applicant's trial started on 20 December 1999.
By a judgment of 31 March 2000 the City Court acquitted the applicant of the new charge.
On 26 June 2000 the applicant was released from prison following an amnesty declared on 26 May 2000.
b) The conditions of detention
From 29 June 1995 to 20 October 1999 the applicant was kept in the detention facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward No. 1 (СИЗО-1)). On 20 October 1999 he was sent to serve his sentence following the City Court judgment of 3 August 1999 to the penitentiary establishment AV-261/3 in the Talaya village. On 10 December 1999 he was transferred back to the detention facility in Magadan where he stayed until his release on 26 June 2000.
On 15 July 1996, in response to a developing criminal situation, a special force of the Department of the Execution of Sentences (отдел специального назначения Управления исполнения наказаний) entered the Magadan detention facility. They searched the cells of the facility and confiscated forbidden objects. As a number of inmates disobeyed and resisted the orders of the special force, the latter used physical force against them.
The use of force in instances of disobedience and resistance to the orders of the authorities was recorded in official reports.
The applicant submits that for several days the special force beat inmates, including himself, with rubber truncheons, kicked them, made them run through the corridors and spread-eagled them against the wall.
On 16 July 1996 the applicant applied to the medical section of the detention facility to have the injuries he had suffered placed on record. A medical examiner found no evidence of bodily injuries and diagnosed the applicant as “practically healthy”.
On an unspecified date, the applicant together with eight other inmates complained to the Magadan Regional Prosecutor that the use of physical force by the special team against them and other inmates had been unlawful.
On 31 July 1996 the Regional Prosecutor refused to initiate criminal proceedings on the basis of the complaint. He found that physical force had been applied only to individuals who had refused to obey lawful orders of the authorities and who had physically resisted their actions. He considered that in the circumstances of the case the use of force had been lawful and necessary.
As regards his general conditions of detention during the first period in the Magadan detention facility, the applicant submits the following:
He was kept in a cell of 17 square meters where there were 8 bunk beds. However, it nearly always held 24 inmates; only rarely did the number fall to 18. As there were three men to every bunk, the inmates slept taking turns. The others would lie or sit on the floor or cardboard boxes waiting for their turn. As the television was on around the clock and during the day, there was much commotion in the cell and it was impossible to sleep properly. The light in the cell was never turned off.
The lavatory pan in the corner of the cell offered no privacy. A partition separated it from a wash stand, but not from the living area and dining table. The lavatory pan was elevated from the floor by half a meter while the partition measured 1,1 meters in height. Therefore, the person using the toilet was in the view of both his cellmates and a prison guard observing the inmates through a peep-hole in the door.
The inmates had to eat their meals in the cell at a dining table which was only a meter away from the toilet. The meals were of poor quality.
The cell, which had no ventilation, was stiflingly hot in summer and very cold in winter. Because of the poor quality of the air in the cell a window had to remain open all the time. Being surrounded by heavy smokers the applicant was forced to become a passive smoker. The applicant claims that he was never given proper bedding, dishes or kitchen utensils. He only received a quilted mattress and a thin flannel blanket from the administration and had to borrow kitchenware from cell-mates, who had received these items from relatives.
The cells of the detention facility were overrun with cockroaches and ants, but no attempt was made to exterminate them. The only sanitary precaution taken was that once a week the guards gave the inmates a litre of chloride disinfectant for the lavatory.
He contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails. During the trial from 11 November 1996 to 23 April 1997 and from 15 April 1999 to 3 August 1999, a recess was ordered so that he could be treated for scabies.
On six occasions detainees with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections.
Finally, the applicant submits that he could take a walk outside his cell one hour per day and that usually he was able to take a hot shower only twice a month.
According to the applicant's medical records, he had scabies in December 1996, allergic dermatitis in July and August 1997, a fungal infection on his feet in June 1999, a fungal infection on his finger nail in August 1999, mycosis in September 1999 and a fungal infection on his feet, hands and groin in October 1999. The records also state that the applicant received treatment for these medical conditions.
The Government submit that the area of the cell in which the applicant was held was 20,8 square meters. The applicant had a separate sleeping berth, bedding, kitchen utensils and access to health care. The cell was designed for 8 inmates. In connection with the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. In the applicant's cell there were 11 or more inmates at any given time. Normally the number of inmates was 14. The beds were used in turn by several prisoners on the basis of eight hour shifts of sleep per prisoner. All inmates were provided with wadded mattresses, cotton blankets and sheets.
The applicant's cell was equipped with a sanitary unit, including a lavatory pan and a wash stand. The lavatory pan was situated in the corner of the cell and was separated from the dwelling place by a partition - 1,1 meters high - ensuring privacy. Such standards have been set by the “Directions on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971.
The cell had windows giving access to fresh air and daylight. There was no possibility to equip the cell with a ventilation system. In hot weather a window of the cell door could be opened for better ventilation. Inmates also had the opportunity to have compact fans delivered to them by relatives.
There was a television in the cell which belonged to the applicant who could control when to switch it on or off. Programmes were only transmitted during part of the day in the region.
On 11 February 1998 an inmate in the applicant's cell was diagnosed with syphilis. The inmate was immediately removed to a separate cell and underwent a complete course of treatment for the disease. The other inmates, including the applicant, who had shared the cell with this person, were subjected to appropriate preventive treatment on 26 February 1998 and to serological control measures. This was done pursuant to the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention Facilities and Correctional Labour Institutions of the USSR Ministry of the Interior”, approved on 17 November 1989.
In January 1999 one of the blocks in the detention facility was closed for repairs and the detainees were transferred to vacant places in other cells. The detainees who were moved to the applicant's cell stayed there for a week and some of them were ill with tuberculosis. However, in the opinion of the medical personnel, the latter did not present a danger to other inmates as these persons were undergoing out-patient medical treatment.
On 2 June 1999, an inmate who was observed to have residual tuberculosis was placed in the applicant's cell. The inmate underwent the relapse prevention treatment for a period of two months. As he did not suffer from tuberculosis in its open form, there was no danger of its transmission to other inmates.
The applicant underwent repeated fluorographic examinations which showed no abnormality of his thorax.
On 15 June 1999, an inmate who was undergoing treatment for syphilis was placed in the applicant's cell. Medical examinations performed subsequently showed negative results. Blood tests which were performed in this connection on the applicant also revealed negative results.
When the applicant was diagnosed with different diseases (neurocirulatory dystonia, scabies, fungal infection) he received immediate medical care. There were recesses announced during the trial in order to provide medical treatment for the applicant.
The applicant was systematically examined by the medical personnel and he received medical assistance from a dermatologist, therapeutist and stomatologist.
The applicant could shower every 7 days and he was permitted to walk outside his cell for up to 2 hours a day.
Finally, the Government submit that, in order to prevent the appearance of infectious diseases, pre-trial detention facilities take prophylactic disinfection measures to secure the timely extermination of pathogenic micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned ministerial guidelines of 1989. It is conceded, however, that the infestation of detention facilities with insects is a problem.
During the preliminary investigation, the applicant was denied family visits in custody. The Government submit that he was allowed to exchange correspondence with his family, while the applicant contends that all his requests to this effect were refused by the investigator.
At the trial stage of the proceedings, the applicant was allowed to have meetings with his family, during which he could talk to them through a glass partition with the aid of a telephone. He had visits from his elderly mother for one hour a month. His requests to have direct contacts and private meetings with his wife were refused on the grounds that no suitable facilities were available and were not foreseen in the prison regulations. As a result, since 29 June 1995 the applicant did not have any physical contact or direct meeting with her.
The applicant further argues that, following his transfer back to the same facility on 10 December 1999, the detention conditions had not materially improved. He was not provided with proper bedding, towels or kitchenware. There was no treatment available for his skin disease due to a lack of proper medication. His cell was still overrun with cockroaches and there had been no anti-infestation treatment for 5 years. He was denied conjugal visits from his wife. However, in March-April 2000 the number of inmates in his 8-bed cell was reduced to 11.
B. Relevant domestic law
1. Constitution of the Russian Federation
Article 45(2) of Section 1
“Everyone shall have the right to defend his or her rights and freedoms by any means not prohibited by the law.”
Article 46 (1) and (2) of Section 1
“Everyone shall be guaranteed protection of his or her rights in a court of law.”
“The decisions and actions (or inaction) of State organs, organs of local self-government, public associations and officials may be appealed against in a court of law.”
Article 6 (2) of Section 2
“Until the criminal-procedure legislation of the Russian Federation is brought into line with the provisions of this Constitution, the previous procedure for the arrest, remand and detention of persons suspected of committing a crime shall remain in force.”
2. Code of Criminal Procedure
Article 11 (1): Personal inviolability
“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.”
Article 89 (1): Application of preventive measures
“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor and the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.”
Article 92 : Order and decision on the application of a preventive measure
“On the application of a preventive measure a person conducting an inquiry, an investigator and a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained.
A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.”
Article 96: Placement in custody
“Placement in custody as a preventive measure shall be done in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.”
Article 97: Time-limits for pre-trial detention
“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ...
An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).”
Article 101: Cancellation or modification of a preventive measure
“A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The cancellation or modification of a preventive measure shall be effected by a reasoned order of the person carrying out the inquiry, the investigator or the prosecutor, or by a reasoned court decision after the case has been transferred to a court.
The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.”
Article 223-1: Setting a date for a court hearing
“If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days from the seizure of the court.”
Article 239: Time-limits for examination of the case
“The examination of a case before the court must start no later than 14 days from the fixing of a hearing date.”
3. Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens (as revised by the Federal Law of 14 December 1995)
According to this law, any citizen has the right to file a complaint with a court when he or she considers that his or her rights have been infringed by unlawful actions or decisions of State agencies, bodies of local self-government as well as institutions, enterprises or their associations, non-governmental organisations or officials and State employees.
Complaints may be filed either directly with a court or a higher State agency which has the obligation to review the complaint within a month. If the complaint is rejected by the latter or there has been no response on its part, the person has the right to bring the matter before a court.
4. Federal Law on the Detention on Remand of Suspects and Persons Accused of Offences
According to Article 17 § 1(3) of this law, suspects and accused persons have the right to request to be personally received by the director of the pre-trial detention facility as well as by officials exercising control over detention facilities, during their presence in the facility.
Under Article 17 § 1(7) of the law, suspects and accused persons have the right to file applications and complaints with the competent bodies, including a court, concerning a violation of their rights and freedoms.
Article 18 (3) of the law stipulates that suspects and accused persons are allowed no more than two visits by relatives or other persons per month for up to three hours on the basis of written permission from the person or body dealing with the particular criminal case.
C. Reservation of the Russian Federation
The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation:
“In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96-1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions.”
1. The applicant complains under Article 3 of the Convention about his ill-treatment by special forces in July 1996 while in detention on remand.
2. The applicant also complains under Article 3 of the Convention about his conditions of detention in the Magadan detention facility IZ-47/1.
3. The applicant complains that his lengthy detention without judgment violated his right to a trial within a reasonable time or to release pending trial under Article 5 § 3 of the Convention.
4. The applicant next complains under Article 6 § 1 of the Convention that the criminal charges against him were not determined within a reasonable time.
5. The applicant complains that he did not have a fair hearing by an impartial tribunal. In particular, he complains that the authorities interrogated him as a witness after the institution of criminal proceedings, that the court refused to allow his second lawyer to participate in the hearing, and that he was denied the opportunity to call his witnesses and to question the witnesses against him. He invokes Article 6 §§ 1 and 3 (a), (c) and (d) of the Convention.
6. The applicant further complains under Article 7 of the Convention that he was convicted on 3 August 1999 of an act which did not constitute a criminal offence at the time of its commission. He submits that the City Court applied the relevant section of the Criminal Code, in force as of 15 July 1994, to an act which was committed in June 1994.
7. The applicant complains under Article 8 of the Convention about a lack of adequate contacts with his family during his detention on remand.
8. Invoking Article 13 of the Convention, the applicant complains that the Supreme Court failed to examine in substance his complaint against the decision of the City Court of 3 August 1999 to remit part of the indictment to the investigation authorities.
9. Finally, the applicant complains that the Supreme Court examined his appeal against the City Court judgment after considerable delay and failed to deal adequately with the points he raised. He invokes Article 13 of the Convention and Article 2 of Protocol No. 7.
1. The applicant complains under Article 3 of the Convention about his ill-treatment by special forces in July 1996 while in detention on remand.
Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government submit that the complaint relates to facts which took place before the entry into force of the Convention with respect to Russia, and is unsubstantiated.
The Court recalls that, according to the generally recognised principles of international law, the Convention is binding on the Contracting States only in respect of facts occurring after its entry into force. The Convention entered into force with respect to Russia on 5 May 1998. It observes that the applicant's complaint relates to a period prior to that date.
It follows that this part of the application is outside the competence ratione temporis of the Court, and is incompatible with the provisions of the Convention within the meaning of Article 35 § 3.
2. The applicant also complains under Article 3 of the Convention about his conditions of detention in the Magadan detention facility IZ-47/1 (СИЗО-1).
The Government first maintain that the applicant has not exhausted remedies available to him under Russian law, as required by Article 35 § 1 of the Convention. They submit that it was open to the applicant to complain about the alleged violation of his rights to the director of the detention facility as well as higher State agencies in charge of the execution of criminal sentences. The applicant also had the opportunity to file a court complaint. They refer in this respect to Article 17 § 1(3) and (7) of the Federal Law on the Detention on Remand of Suspects and Persons Accused of Offences, the Law on Complaints to Courts Against Actions and Decisions Violating the Rights and Freedoms of Citizens, as well as to Articles 45 (2) and 46 (1) and (2) of the Constitution.
However, the applicant, who was aware of these opportunities, did not use them to complain about his conditions of detention. The Government argue that it appears from a request by the applicant on 11 August 1999 to stay in the detention facility, rather than be sent to serve his sentence in a correctional colony, that he had no intention of complaining about the conduct of the administration of the detention facility.
The Government also argue that the applicant's requests for release from custody, in which he mentioned his conditions of detention, could not be treated as a remedy in respect of the alleged breach of Article 3 of the Convention.
As regards the substance of the complaint, the Government acknowledge that, for economic reasons, conditions of detention in Russia are very unsatisfactory and fall below the requirements set for penitentiary establishments in other member States of the Council of Europe. The Government argue, however, that the applicant's conditions of detention cannot be regarded as torture or inhuman or degrading treatment. They did not differ from, or at least were no worse than those of most detainees in Russia. Overcrowding is a problem in pre-trial detention facilities in general.
The authorities had no intention of causing physical suffering to the applicant or of harming his health. The administration of the detention facility took all available measures medically to treat the persons suffering from disease and to prevent the contagion of other inmates.
The Government are doing their best to improve conditions of detention in Russia. They have adopted a number of task programmes aimed at the construction of new pre-trial detention facilities, the re-construction of the existing ones and the elimination of tuberculosis and other infectious diseases in prisons. The implementation of these programmes will allow for a two-fold increase of space for prisoners and for the improvement of sanitary conditions in pre-trial detention facilities.
The applicant submits that he systematically filed complaints about his conditions of detention with all levels of the Russian authorities. All his complaints were submitted via the administration of the detention facility where they were registered. However, no action was taken to improve his conditions of detention.
As regards the merits of his complaint, the applicant submits that the overcrowding and unsanitary conditions in his cell, combined with the length of his detention, amounted to a breach of Article 3 of the Convention.
The Court recalls that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal systems (see, for example, the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
However, the only remedies which must be tried under Article 35 § 1 of the Convention are those that relate to the breaches alleged and which at the same time are available and adequate. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they lack the requisite accessibility and effectiveness (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66, and Selmouni v. France cited above, § 75).
Furthermore, the Court recalls that in the area of exhaustion of domestic remedies the burden of proof is on the Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. Once this burden of proof is satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see, for example, the Akdivar and Others judgment cited above, p. 1211, § 68, and Selmouni v. France cited above, § 76).
In the present case, the Court notes that is not disputed that the applicant repeatedly filed complaints with different authorities, notably the Magadan City Court, the Supreme Court, the Prosecutor General and the High Qualification Board of Judges, in which he raised the question of his conditions of detention. It considers that the authorities were thereby made sufficiently aware of the applicant's situation and that they had the opportunity to examine the conditions of the applicant's detention and, if appropriate, to offer redress.
Furthermore, while it is true that the applicant did not use the channels suggested by the Government by lodging separate complaints with a court, with the director of the detention facility or higher State agencies, the Court notes that the problems arising from overcrowding in pre-trial detention facilities were apparently of a structural nature and did not only concern the applicant's personal situation. The Government have not demonstrated what redress these bodies could have afforded the applicant, given the accepted economic difficulties of prison administrations.
In these circumstances, the Court considers that it has not been established with sufficient certainty that recourse to the remedies suggested by the Government would have been capable of affording redress to the applicant in relation to his complaint concerning his conditions of detention.
The Court therefore finds that this part of the application cannot be rejected for failure to exhaust domestic remedies.
As regards the substance of this part of the application, the Court considers, in the light of the parties' submissions, that it raises complex questions of fact and law under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
3. The applicant complains that his lengthy pre-trial detention violated Article 5 § 3 of the Convention, which provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Government submit that the period of the applicant's detention on remand ended on 3 August 1999 when the Magadan City Court delivered its judgment. They argue, in the first place, that the applicant has not exhausted available domestic remedies as the applicant did not lodge a cassation appeal. The Government aver that a court of cassation could have shortened the term of imprisonment imposed by the City Court to the period already spent in custody, having regard to the length of the applicant's pre-trial detention.
In addition, it is maintained that the Court's examination of the length of the applicant's detention on remand should be limited to the period from 5 May 1998, the date on which the Convention entered into force in respect of Russia, until 3 August 1999.
The Government further argue that the applicant's complaint should be examined in the light of the Russian reservation. It is submitted that the reservation applies both to the period of the applicant's detention during the preliminary investigation and the court proceedings. They refer to the text of the reservation and the contents of the Articles of the Code of Criminal Procedure cited therein. In particular, Articles 11, 89, 92 and 101 of the Code confer a power on the courts to apply preventive custody measures at the trial stage up until the delivery of a judgment.
The Government point out that the applicant was arrested on the ground that he had obstructed the investigation of the truth, and submit that the period of his detention during the preliminary investigation did not exceed the maximum limit of 18 months under Article 97 of the Code of Criminal Procedure.
They further regard the period of the applicant's pre-trial detention as reasonable in view of the complexity of the case, its considerable size (9 volumes) and the large number of witnesses and victims involved.
The applicant submits that the period to be taken into consideration began on 29 June 1995 and ended on 31 March 2000, when the Magadan City Court issued its second judgment in the case, and not on 3 August 1999 when it delivered its first judgment. While the period prior to 5 May 1998 lies outside the Court's jurisdiction ratione temporis, the applicant asks the Court to take into account the fact that by that date he had already been in custody for over three years.
It is further submitted that the Russian reservation is not applicable in the present case as the reservation does not concern the length of detention on remand. It is argued that the purpose of the reservation was to preserve the right of the prosecutor to order detention on remand and to grant extensions of such detention when necessary.
The applicant maintains that it was not necessary to take him into custody and to keep him in detention for an extended period of time as there was no proof that he was trying to obstruct the establishment of the truth in the case. The reasons given by the authorities to justify his detention were not relevant or sufficient.
He also submits that his case was not particularly complex, referring to the finding of the Magadan Regional Court on 15 March 1999.
As regards the size of the case, the applicant contends that three of the nine volumes of the case-file were made up entirely of his complaints to the various authorities. As regards the number of witnesses and injured parties, it is pointed out that the investigation involved the questioning of 29 witnesses and that there were two civil plaintiffs in the case.
The applicant argues that the proceedings were not conducted with special diligence on the part of the authorities. His lengthy detention was occasioned by the poor quality of the investigation, its unwarranted attempts to increase the number of counts in the indictment and a lack of proper control over its activities by the supervising bodies. In this respect, he refers to the findings of the Magadan City Court on 3 August 1999.
The Court first recalls that, in determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance (see, among other authorities, the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, § 9, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV). Thus, in the present case the applicant's detention on remand began on 29 June 1995, when he was arrested, and ended on 3 August 1999, when he was convicted and sentenced by the Magadan City Court. The further remand on outstanding charges did not alter the fact that, as of 3 August 1999, the applicant was serving a sentence after his conviction by a competent court, within the meaning of Article 5 § 1 (a) of the Convention.
The Court notes the Government's objection concerning non-exhaustion of domestic remedies on account of the applicant's failure to appeal against the City Court judgment to a court of cassation which could have reduced the applicant's sentence to the period already spent in custody, having regard to the length of this pre-trial detention.
However, the Court is not persuaded that such an appeal, in effect against sentence, could have constituted an effective remedy for his complaint under Article 5 § 3 of the Convention about the excessive duration of his pre-trial detention. The Government have furnished no examples of domestic case-law where a reduction in sentence has been granted on such grounds.
Accordingly, the Court is of the view that the complaint cannot be rejected for failure to exhaust domestic remedies.
The Court also notes the Government's objection on the basis of the Russian reservation. It considers that this objection is closely linked to the merits of the applicant's complaint.
Furthermore, the Court considers, in light of the parties' submissions, that the substance of this part of the application also raises complex issues of law and of fact under the Convention. It concludes, therefore that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.
It joins the Government's objection concerning the Russian reservation to the merits of the applicant's complaint.
4. The applicant complains under Article 6 § 1 of the Convention that the criminal charges against him were not determined within a reasonable time.
Article 6 § 1 first sentence reads in so far as relevant as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government submit that the period to be considered lasted from the transmission of the applicant's case to the Magadan City Court on 6 February 1996 until the pronouncement of its judgment on 3 August 1999. They argue, first, that the applicant has not exhausted available domestic remedies as he did not file an appeal in cassation against the judgment. A court of cassation could have shortened the term of imprisonment imposed by the City Court to the period already spent in custody, having regard to the length of the applicant's pre-trial detention. In this connection the Government rely heavily on a decision of the Court in the case of Petrenko v. Norway, no. 41050/98 (9.5.2000).
The Government acknowledge that the examination of the applicant's case lasted a long time, but submit that the period was not unreasonable. They point out that the Code of Criminal Procedure does not stipulate a period during which a court must examine a case. Nor does it lay down any time-limits for the accused's remand in custody during the court proceedings. It is maintained that the lengthy examination of the applicant's case was caused by its complexity and volume, as well as the need for a thorough and comprehensive investigation of the case.
Furthermore, the applicant contributed to the length of the proceedings by filing multiple applications, including repeated requests on motions which had been previously rejected. The Government refer in this respect to the findings of the Magadan City Court of 15 July 1999 and 22 July 1999 where it was considered that the applicant's numerous requests filed during the trial amounted to a deliberate attempt to delay the proceedings. The applicant's petitions for a transfer of his case to another court between hearings also caused delay. It is pointed out that 30 % of the applicant's case-file was made up of his complaints and motions.
The Government also point out that the period of the applicant's custody was subsumed by the term of his sentence. Therefore, the length of the applicant's detention on remand had no impact on the overall period of his confinement.
Finally, the Government state that the authorities demonstrated a humane attitude towards the applicant by way of an amnesty, which released him earlier from his sentence, even though he had not compensated the bank and its many customers for the damage he had caused.
The applicant submits that the period to be taken into account began on 8 February 1995, with the institution of the criminal proceedings against him, and ended on 31 March 2000, when the Magadan City Court delivered its second judgment in the case, and not on 3 August 1999 when it delivered its first judgment. He points out that the criminal proceedings involved only one jurisdictional level. While the period prior to 5 May 1998 lies outside the Court's jurisdiction ratione temporis, the applicant asks the Court to take into account the fact that by that date the proceedings had already been pending for three years.
As to the complexity of the case, the applicant refers to the finding of the Magadan Regional Court on 15 March 1999 that the case was not particularly complex and that this could not justify the delay in the proceedings.
As regards his conduct, the applicant submits that his complaints were aimed at accelerating the proceedings. Moreover, his active co-operation with the judiciary is not required under Article 6 of the Convention, nor can his attempt to pursue legal remedies be held against him.
As to the conduct of the authorities, the applicant refers to the poor quality of the preliminary investigation and the investigative shortcomings as established by the Magadan City Court on 3 August 1999. In addition, the City Court itself breached domestic procedural law by failing to comply with the time-limits for the start of the trial stipulated in Articles 223-1 and 239 of the Code of Criminal Procedure. The applicant points out that at the trial the court questioned only nine witnesses. He also refers to the removal of the judge from his case, which had nothing to do with him, and to the transfer of his case to the Khasynskiy District Court which proved ineffective.
The Court recalls that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term (see, among other authorities, the Corigliano v. Italy judgment of 10 December 1982, Series A no. 57, p. 13, § 34, and the Imbriosca v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It ends with the day on which a charge is finally determined or the proceedings are discontinued.
The period under consideration in the present case thus began on 8 February 1995, when the applicant became a suspect on charges of misappropriation. As regards the end of the period, the Court notes that, following the decision to discontinue the remaining charges on 29 September 1999, after the City Court judgment of 3 August 1999, a new charge was brought against the applicant on 30 September 1999 on the basis of the same set of facts. It observes that the new charge was part of the original criminal case no. 48529 which had been initiated on 8 September 1995. In these circumstances and taking account of the timing of the new charge, the Court finds that the period to be considered ended on 31 March 2000, when the City Court delivered its judgment determining the final charge.
In the light of this finding, the Court considers that it is not necessary to examine the Government's objections concerning non-exhaustion of domestic remedies on the basis of the applicant's failure to file a cassation appeal against the City Court's first judgment of 3 August 1999. The Court would anyway note that the case of of Petrenko v. Norway, relied on by the Government, was declared inadmissible by a committee of three judges which found that case to be manifestly ill-founded as a whole, within the meaning of Article 35 § 3 of the Convention, and that it has no jurisprudential value or relevance to the present case.
The Court observes that the period under consideration, i.e. from 8 February 1995 until 31 March 2000, amounted to a total of 5 years, 1 month and 23 days. While its jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Russia on 5 May 1998, the Court will take into account the state of proceedings existing on the material date (see, among other authorities, mutatis mutandis, the Yağci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40).
The Court considers, in the light of the criteria established in its case-law on the question of "reasonable time” (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this part of the application is required.
5. The applicant next complains that he did not have a fair hearing by an impartial tribunal. In particular, he complains that the authorities interrogated him as a witness after the institution of criminal proceedings, that the court refused to allow his second lawyer to participate at the conclusion of the trial, and that he was denied the opportunity to call his witnesses and to question the witnesses against him. He invokes Article 6 §§ 1 and 3 (a), (c) and (d) of the Convention. Paragraph 1 of this provision is cited above. Paragraph 3 provides, insofar as relevant, as follows:
“Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...
(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;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf on the same conditions as witnesses against him; ...”
The Court recalls that under the terms of Article 35 § 1 of the Convention it can only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The rule of exhaustion of domestic remedies requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The obligation to exhaust domestic remedies does not require that remedies be pursued which would have no chance of success. However, if there exists a doubt as to the effectiveness of a domestic remedy, that remedy must be tried (see, for example, Raif v. Greece, application no. 21782/93, Commission decision of 26 June 1995, D.R. 82, p. 5).
In the present case the applicant did not appeal against the judgment of the first instance court to the Magadan Regional Court – a possibility open to him under Russian law – believing such an appeal to be pointless on the grounds of alleged collusion between the two courts. However, the Court finds this allegation wholly unsubstantiated and there is no indication in the case-file that an appeal would have had no reasonable prospects of success before the Regional Court. Nor were there any special circumstances which might have absolved the applicant from exhausting this remedy.
In these circumstances, the Court considers that the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available to him under Russian law. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
6. The applicant further complains under Article 7 of the Convention that he was convicted on 3 August 1999 of an act which did not constitute a criminal offence at the time of its commission. He submits that the City Court applied the relevant section of the Criminal Code, which was in force as of 15 July 1994, to an act which was committed in June 1994.
The relevant part of Article 7 of the Convention reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...”
However, again the Court notes that the applicant did not avail himself of the possibility of appealing against his conviction to the Regional Court where this issue could have been raised. Consequently, it finds that the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the remedies available to him under Russian law. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
7. The applicant next complains under Article 8 of the Convention about inadequate contacts with his family during his detention on remand.
The relevant part of Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his ... family life, ... and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ... .”
The Government submit that the complaint is manifestly ill-founded. They point out that the ban on family visits during the preliminary investigation was effected pursuant to Article 18 (3) of the Federal Law on the Detention on Remand of Suspects and Persons Accused of Offences. No restrictions were placed on the exchange of letters during that period. During the court proceedings the applicant's requests for family visits were granted.
The applicant claims that during the preliminary investigation he was not permitted to exchange correspondence with his relatives. At the trial phase of the proceedings, the contacts with his family remained inadequate as he was allowed only limited visits from his mother and was refused conjugal meetings with his wife.
The Court considers at the outset that it can only examine the present complaint insofar as it relates to facts which took place after 5 May 1998, when the Convention entered into force in respect of Russia. Consequently, the applicant's complaint under Article 8 of the Convention in respect of facts prior to this date must be rejected as being incompatible ratione temporis.
As regards the subsequent period, the Court notes that the applicant was allowed regular meetings with his family, albeit subject to certain restrictions as to their nature, frequency and duration. As there was thus an interference with the applicant's right to respect for his family life within the meaning of Article 8 § 1 of the Convention, the question arises whether this interference was justified under the terms of Article 8 § 2 of the Convention, i.e. whether it can be regarded as being “in accordance with the law” for the purposes of one or more of the legitimate aims referred to in paragraph 2 of that provision and whether it can be regarded as being “necessary in a democratic society”.
The Court notes that the restrictions complained of were based on the Federal Law on the Detention on Remand of Suspects and Persons Accused of Offences and finds, therefore, no indication that the restrictions were not “in accordance with the law”. It also accepts that they pursued the legitimate aim of the prevention of disorder or crime within the meaning of Article 8 § 2 of the Convention.
As to the question whether the interference was “necessary in a democratic society”, the Court considers that while detention is by its very nature a limitation on private and family life, it is an essential part of a prisoner's right to respect for family life that prison authorities assist in maintaining effective contact with his or her close family members (see, for example, Messina v. Italy (no. 2), no 25498/94, §§ 61-61, ECHR 2000-X). At the same time, the Court recognises that some measure of control over prisoners' contacts with the outside world is called for and is not of itself incompatible with the Convention (see, for example, mutatis mutandis, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 38, § 98).
The Court observes that the applicant was detained on remand on the grounds of the gravity of the charges against him and the danger of his obstructing the establishment of the truth. It recalls that the aim of preventing disorder or crime may justify wider measures of interference in a case of a person held on remand since in such a case there is often a risk of collusion (see, for example, the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, p. 13, § 25).
In the circumstances of the present case the Court finds that the restriction on the number and duration of family visits within the limits set by the aforementioned federal law was proportionate to the legitimate aim pursued.
As regards the question of conjugal visits, the Court notes with interest the reform movements in several European countries to improve prison conditions by facilitating such visits. It considers however that the refusal of conjugal visits may for the present time be regarded as justified for the prevention of disorder and crime (see, for example, E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 1997, D.R. 91-A, p. 61).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
8. Invoking Article 13 of the Convention, the applicant complains that the Supreme Court failed to examine the merits of his complaint concerning the City Court's decision of 3 August 1999 to remit part of the indictment to the investigation authorities.
Article 13 of the Convention, insofar as relevant, provides:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ... .”
The Court notes that the applicant's complaint is an integral part of his complaints under Article 6 § 1 of the Convention which have already been examined above. Article 6 § 1 provides more stringent protection than Article 13. The Court thus finds no separate issue under the latter provision requiring a further examination.
9. Finally, the applicant complains that the Supreme Court examined his second extraordinary appeal against the City Court judgment after considerable delay (from 30 November 1999 when it was lodged to its dismissal on 9 June 2000) and failed to deal adequately with the points raised in it. He invokes Article 13 of the Convention (cited above) and Article 2 of Protocol No. 7, according to which everyone convicted of a criminal offence has the right to have his conviction or sentence reviewed by a higher tribunal.
The Court notes that the applicant's complaint relates to the examination of an extraordinary appeal against a judgment which had become final and res judicata. It finds that the right to have criminal proceedings re-opened is not guaranteed by the Convention.
It follows that that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Joins to the merits of the applicant's complaint under Article 5 § 3 of the Convention the Government's objection on the basis of the Russian reservation;
Declares admissible, without prejudging the merits, the applicant's complaints concerning
(a) his conditions of detention (Article 3 of the Convention),
(b) the length of his detention on remand (Article 5 § 3 of the Convention), and
(c) the length of the criminal proceedings (Article 6 § 1 of the Convention);
Declares inadmissible the remainder of the application.
S. Dollé J.-P. Costa
KALASHNIKOV v. RUSSIA DECISION
KALASHNIKOV v. RUSSIA DECISION