FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55669/00 
by Lev NAKHMANOVICH 
against Russia

The European Court of Human Rights (First Section), sitting on 28 October 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mr V. Zagrebelsky
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 29 December 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lev Aleksandrovich Nakhmanovich, is a national of Kazakhstan, who was born in 1957 and lives in Jambul, Kazakhstan. He is represented before the Court by Ms K. Moskalenko of the International Protection Centre, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Criminal proceedings against the applicant in 1992-1994

On 28 October 1992 the Moscow police opened a criminal investigation into the theft of about 4 milliard Russian roubles (approximately 35 million US dollars) from the Bank of Russia through the use of forged credit notes of the National Bank of Kazakhstan.

On 24 December 1992 the applicant was detained in Moscow airport on his arrival from Rome, Italy. On 26 and 27 December 1992 the applicant confessed to having committed the theft in conspiracy with Mr Smolenskiy, director of a Russian commercial bank.

On 28 December 1992 the applicant was released from custody. For some time thereafter he was kept in a hotel owned by the Ministry of the Interior. On 18 May 1993 the Prosecutor General's office acknowledged that the restriction on the applicant's liberty of movement had been unlawful and imposed disciplinary sanctions on the responsible officers.

On 23 November 1994 the applicant was charged with large-scale fraud under Article 147 § 3 of the RSFSR Criminal Code and his detention was ordered. As by that time the applicant had fled from Russia, his name was placed on the wanted persons' list.

2.  The applicant's arrest in Switzerland and extradition

On 20 March 1997 the applicant's name was placed on the Interpol wanted list. On 11 September 1997 the Swiss police detained the applicant in Lugano, Switzerland, with a view to extraditing him.

Upon receipt of the documents supporting the extradition request, on 29 January 1998 the Swiss authorities decided to extradite the applicant.

On 24 April 1998 the applicant was extradited to the Russian Federation where he was placed in detention facility IZ-48/4 “Matrosskaya Tishina”. A bill of indictment was served on the applicant charging him with large-scale fraud.

On 5 May 1998 the Convention entered into force in respect of the Russian Federation.

3.  Criminal proceedings against the applicant in Russia

(a)  First challenge to the lawfulness of the applicant's detention

On 15 June 1998 Ms Weisleib, the applicant's lawyer, lodged a complaint with the Preobrazhenskiy District Court of Moscow challenging the lawfulness of the applicant's detention. She submitted, in particular, that the applicant had been detained in Switzerland on the basis of the arrest warrant of 23 November 1994 and that he had remained in custody for more than nine months, although no subsequent extensions of the detention period had been granted. The lawyer also contended that the applicant was a national of Kazakhstan and that the criminal proceedings against him had been terminated in Kazakhstan because no indications of an offence had been established. She argued that his prosecution in the Russian Federation would accordingly amount to double jeopardy. Ms Weisleib indicated that after six years' investigation the law enforcement authorities had collected all possible evidence including statements by witnesses, and the applicant therefore could not interfere with the establishment of the truth. Finally, she sought his release on medical grounds alleging that the applicant's health had been seriously impaired as a result of continued detention (headaches, impotence, numbness of right limbs).

On 25 June and 8 July 1998 the hearings fixed before the Preobrazhenskiy District Court had to be adjourned because the applicant had not been brought to the court.

On 13 July 1998 a deputy Prosecutor General of the Russian Federation authorised an extension of the applicant's detention on remand until 8 September 1998, i.e. for a total of twelve months from the date of his initial detention in Switzerland. The decision indicated that at the moment of the applicant's extradition the period of his detention had been calculated from the day of his extradition, which period had been duly extended on 10 June 1998 until 24 October 1998. It further pointed out that on 18 June 1998 the Prosecutor General had issued instruction no. 38/36, according to which the period of detention flowed from the moment of the arrest of the suspect abroad and, therefore, the present decision took 11 September 1997 as the starting date of the applicant's detention. The continued detention was justified by reference to the gravity of the offence, the applicant's potential to abscond and to the international obligations undertaken by the Russian authorities in the course of the extradition proceedings.

On 14 July 1998 the Preobrazhenskiy District Court took statements from the applicant and his lawyer as well as from the prosecutor and held that the detention had been imposed and subsequently extended on valid grounds and in accordance with the Code of Criminal Procedure. Accordingly, no grounds for applying a different measure of restraint had been made out.

The applicant's lawyer appealed against the decision of the district court. In addition to the original arguments, she submitted that the court, in finding the detention lawful, had failed to give any reasons for its finding.

On 3 August 1998 the Moscow City Court upheld the decision of 14 July 1998. The court confirmed the finding of the lawfulness of the applicant's detention in general terms.

(b)  Extension of the detention period and a second challenge to it

On 29 July 1998 the Prosecutor General of the Russian Federation authorised an extension of the applicant's detention on remand until 8 March 1999, i.e. for a total of 18 months. The applicant submits that no separate extension order was made and that the new authorisation was printed on top of the authorisation of 13 July 1998. He further submits that he was not notified of the extension until 10 September 1998.

On 22 October 1998 Mmes Weisleib and Orozalieva, the applicant's lawyers, appealed against the extension to the Preobrazhenskiy District Court. They submitted, in particular, that there was no indication that the applicant had committed an offence in the Russian territory; that the authorised period of his detention had expired on 8 September 1998, whereas the subsequent extension had only been notified to the applicant two days later; and that there was no indication that the applicant would abscond or interfere with the investigation.

On 13 November 1998 the Preobrazhenskiy District Court dismissed the applicant's lawyers' complaint. The court held that there were no grounds for lifting or amending the measure of restraint imposed on the applicant since the detention had been extended in accordance with the applicable provisions of the Code of Criminal Procedure. The court noted that it was not competent to review the lawfulness and justification of the applicant's placement in custody because this issue had already been determined in the court decision of 14 July 1998.

On 23 November 1998 the applicant's lawyers appealed against the district court's decision. They submitted, in particular, that domestic law only permitted the extension of detention beyond a nine months' period in exceptional circumstances, whereas in the present case neither the Prosecutor General who had authorised an 18 months' extension, nor the district court that had reviewed his decision, had established any such circumstances.

On 9 December 1998 the Moscow City Court upheld the decision of 13 November 1998. The court confirmed that the detention period had been extended lawfully because the applicant was accused of a serious offence. No other reasons for the continued detention were invoked.

On 16 February 1999 the applicant's lawyers filed an application for supervisory review of the judgments concerning the lawfulness of the applicant's detention on remand. On 18 February 1999 a deputy President of the Moscow City Court returned their application without consideration. He wrote that these judgments were not subject to supervisory review because the criminal proceedings against the applicant were pending.

(c)  New charges and severing of the applicant's case

On 29 December 1998 a new charge was added: the applicant was accused of forging and using a forged State document under Article 196 § 1 of the RSFSR Criminal Code. The applicant submits that the addition of a new count was in breach of the extradition undertaking of the Russian authorities, which provided, in particular, that the applicant would not be charged with any offence other than those in respect of which the extradition had been sought.

On 14 January 1999 the Prosecutor General's office decided to sever the case against the applicant from that against Mr Smolenskiy, the applicant's co-accused.

(d)  Alleged restrictions on communication with lawyers

On 4 March 1999 the case file and the bill of indictment were referred to the Zamoskvoretskiy District Court of Moscow for trial.

On 5 March 1999 the administration of detention facility no. IZ-48/4 refused Ms Weisleib's request to visit the applicant because she did not have a proper authorisation from the Zamoskvoretskiy District Court.

Apparently on the same day Ms Weisleib applied to the district court for permission to see the applicant. On 11 March 1999 her application was refused with a handwritten note “Permission to visit will be granted to all lawyers after the case is fixed for hearing and a decision [to that effect] is taken”.

The applicant submits that he could not see his lawyers until 23 March 1999 and he could not therefore lodge any pre-trial motions with the court.

On 22 March 1999 the Zamoskvoretskiy District Court fixed a hearing for 6 April 1999. The hearing was subsequently adjourned three times.

On 7 May 1999 the Zamoskvoretskiy District Court granted the applicant's lawyers' request to make good a restriction of the applicant's right to consult his lawyers. The District Court held that the applicant's right to lodge motions had been unlawfully curtailed and returned the case to the pre-trial stage (стадия назначения к слушанию).

(e)  Additional investigation of the applicant's case

On 20 May 1999 the Zamoskvoretskiy District Court determined that the case against the applicant had been unlawfully severed from the case against Mr Smolenskiy. The court considered that the prosecution should complete the investigation into Mr Smolenskiy's wrongdoings and that the charges against both co-defendants should be examined together. The court ordered the case to be remitted for additional investigation. The prosecution appealed against this decision.

On 18 June 1999 the criminal proceedings against Mr Smolenskiy were discontinued because there was no proof that a criminal offence had been committed.

On 7 July 1999 the Moscow City Court upheld the decision of 20 May 1999. The court also established other procedural defects: in particular, it ordered that the lawfulness of termination of the criminal proceedings against Mr Smolenskiy should be reviewed and that the applicant's indictment should be updated accordingly.

On 19 July 1999 the applicant's case was transferred to the Prosecutor General's office.

On 23 July 1999 the Prosecutor General's office introduced with the Presidium of the Moscow City Court an application for supervisory review (протест в порядке надзора) against the decisions of 20 May and 7 July 1999. The prosecutors requested that these decisions be quashed because in remitting the case for additional investigation the courts had allegedly failed to take into account the imminent expiration of the authorised detention period and violated the applicant's right to have the charge against him determined within a reasonable time.

(f)  Subsequent challenges to the applicant's detention

i.  The applicant's lawyer's complaints to various authorities

On 26 July 1999 the applicant's lawyer sent a letter to the director of facility no. IZ-48/4 requesting the applicant's immediate release. The lawyer also sent a complaint to the deputy Minister of Justice of the Russian Federation in charge of the Prisons Administration Department (ГУИН Министерства юстиции РФ). A similar complaint was filed with the Minister of Justice of the Russian Federation.

On 27 July 1999 the applicant's lawyer lodged a complaint with the Preobrazhenskiy District Court of Moscow about the unlawfulness of the applicant's continued detention. She submitted, in particular, that when the Zamoskvoretskiy District Court had received the case file on 4 March 1999 only five days remained out of the 18-months' detention period covered under the authorisation of the Prosecutor General of 29 July 1998; after the case had been remitted to the prosecutor's office on 19 July 1999, the remaining five days had expired on 24 July 1999 and the applicant's detention after that date was unlawful because no extension had ever been granted or authorised. The lawyer requested the applicant's release.

On 29 July 1999 the applicant's lawyer sent a complaint to the acting Prosecutor General of the Russian Federation. She asserted that the authorised period of the applicant's detention on remand had expired on 24 July 1999 and that he had been ill-advised by his own staff in that they had only received the case-file on 23 July 1999 and immediately requested a supervisory review of the decision of 7 July 1999, which request allegedly had had the effect of interrupting the flow of the applicant's detention period.

ii.  Correspondence between the authorities and the applicant's lawyer

In response to the applicant's lawyer's complaints to the Ministry of Justice, on 26 July 1999 the Prosecutor General's office faxed a letter to the Prisons Administration Department of the Ministry of Justice, which indicated that the prosecutors had received the applicant's case on 23 July 1999.

On 28 July 1999 a senior justice adviser with the Prosecutor General's office informed the Prisons Administration Department that on 23 July 1999 a deputy Prosecutor General of the Russian Federation had lodged an application for supervisory review against the decisions of 20 May and 7 July 1999 and from that day the applicant's detention had been “accounted for by the Moscow City Court”. The administration of facility no. IZ-48/4 subsequently relayed this information to the applicant's lawyer.

On 4 August 1999 the Minister of Justice sent a letter to the acting Prosecutor General, which read, in the relevant part, as follows:

“...on 19 July 1999 the case file was received by the Prosecutor General's office from the Zamoskvoretskiy District Court of Moscow. After account is taken of the five days referred to above, the [applicant's] detention period expired on 23 July 1999.

According to the information of the staff of the Prosecutor General's office, the flow of [the applicant's] detention period was interrupted in connection with the lodging of the supervisory-review application... and transfer of the applicant to the Moscow City Court.

I consider that this approach of the employees of the Prosecutor General's office is not compatible with the Constitution of the Russian Federation and its laws of criminal procedure.

...Thus, the laws of criminal procedure do not provide for an interruption of the flow of the renewed detention for the period of examination of a supervisory-review application against the decision to remit the case for additional investigation... It means that the examination by way of [supervisory] review of judgments, decisions and rulings that have become final suspends neither the enforcement of a judgment nor the flow of [additional] pre-trial investigation if the case was remitted for additional investigation [by a court decision].

...It means that in the present case [the lodging of a supervisory-review application] interrupts not the flow of the detention period, but the flow of the additional investigation, as it is impossible to consider that the interruption of the detention period would in such case be conducive to the implementation of a citizen's right to liberty and personal integrity enshrined in Article 22 of the Constitution of the Russian Federation.

...In this connection the legislator only provided, in Article 97 of the RSFSR Code of Criminal Procedure, for one option for extension of the detention period if a case is remitted for additional investigation, and notably that such extension shall be authorised by the prosecutor in charge of supervision of the investigation.”

The Minister of Justice invited the Prosecutor General to report within one day whether the applicant's detention on remand had been extended as provided in Article 97 of the RSFSR Code of Criminal Procedure.

On 5 August 1999 a deputy Prosecutor General wrote to the Minister of Justice that his office had received the case file on 20 July 1999 and that he had lodged a supervisory-review application without “having accepted the case into the work” (“не принимая дело к своему производству”). The letter did not refer to any extension of the applicant's detention.

On the same day Mr L., prosecutor in charge of the supervision of the lawfulness of criminal punishments, faxed a request to facility no. IZ-48/4 “not to release [the applicant] until the Moscow City Court had examined the supervisory-review application”.

iii.  Court decisions

On 12 August 1999 Ms Weisleib submitted to the Presidium of the Moscow City Court the observations on the supervisory-review application lodged by the deputy Prosecutor General (объяснения на протест). She claimed, in particular, that the prosecution's arguments about the necessity to respect the applicant's right to a trial within a reasonable time looked as a “cynical profanation” of that very right after six years of investigation and eighteen months of detention on remand and that these arguments were clearly contrived, the only purpose being to “shift” the responsibility for the applicant's detention to a court. The lawyer further set out in minute detail the complaints about the allegedly unlawful detention of the applicant following the expiry of the authorised detention period on 23 July 1999 and requested that he should be released by the Presidium. She also advanced arguments in favour of the applicant's innocence and claimed that his innocence could only be conclusively shown if the charges against the applicant and Mr Smolenskiy (who had been acquitted of all charges by that time) were examined jointly.

On 12 August 1999 the Presidium of the Moscow City Court quashed the decisions of 7 and 20 May and 7 July 1999 and remitted the case to the Zamoskvoretskiy District Court for examination on the merits by a differently composed bench. The Presidium found that on 7 May 1999 the judge of the District Court had violated the Code of Criminal Procedure, which did not allow the case to be returned to the pre-trial stage unless a higher court had first quashed the decision to fix a hearing. This initial violation, in the Presidium's assessment, had rendered all subsequent decisions invalid.

On 16 August 1999 a judge of the Preobrazhenskiy District Court ordered that the proceedings on the applicant's lawyer's complaint of 27 July 1999 should be terminated because “on 13 August 1999 the [applicant's] case had been referred to the Zamoskvoretskiy District Court for trial”.

On 25 August 1999 the Zamoskvoretskiy District Court received the case-file for trial.

On 24 September 1999 the Supreme Court of the Russian Federation refused the applicant's lawyer's request for supervisory review of the Presidium decision of 12 August 1999.

4.  The applicant's release from custody

On 20 January 2000 the Zamoskvoretskiy District Court issued a decision to remit the case for additional investigation to the Prosecutor General's office. It ordered that the applicant should remain in custody.

On 4 February 2000 the Investigations Committee of the Ministry of the Interior resumed the investigation of the applicant's case. On the same day the applicant was released from detention facility IZ-48/4 on an undertaking not to leave the city.

In March 2000 the applicant asked for a permission to go to his home country. Once the permission had been granted, on 12 March 2000 he left for Kazakhstan.

On 3 March and 12 April 2000 the Investigations Department of the Ministry of the Interior asked the Prosecutor General to extend the investigation period. On 20 March and 27 April 2000 a deputy Prosecutor General refused to authorise an extension of the investigation period because “there were no lawful grounds for an extension” and because “the applicant's whereabouts could not be established”.

On 20 April and 7 June 2000 the applicant's lawyers asked the investigators to inform them of the current state of the criminal proceedings against the applicant; their requests received no response.

On 7 June 2000 the applicant's lawyers also requested the prosecution to abandon the criminal case against the applicant, referring to a decision of the Kazakhstan law enforcement authorities of 28 April 2000 to terminate the criminal proceedings. On 27 June 2000 Mr Agadzhanov, acting head of department for supervision of investigation of especially serious cases with the Main Investigations Department of the Prosecutor General's office, replied that their request could not be granted because the offence had been committed on the Russian territory and there were no legal grounds to discontinue the proceedings against the applicant.

According to the Government, on 28 April 2000 the criminal proceedings against the applicant were discontinued by Colonel V. Vdovin of the Investigations Department of the Ministry of the Interior on the ground that his involvement in the commission of the offence could not be proved. The decision to discontinue the proceedings indicated, in particular, that “further proceedings in the case [were] impossible because the Prosecutor General's office [had] refused to authorise an extension of the investigation period”.

On 16 January 2004 Ms Orozalieva, the applicant's lawyer, asked the Investigations Department of the Ministry of the Interior for a copy of the decision to discontinue the criminal proceedings against the applicant. She indicated that she had learnt its existence from a conversation with Mr Rodionov, a senior investigator for especially serious cases with the Prosecutor General's office, in October 2003.

On 17 February 2004 Lieutenant Colonel Shevlyakov, deputy head of the investigations department of the Ministry of the Interior, replied to Ms Orozalieva that “on 27 December 2000 criminal case no. 81684 was sent to the Prosecutor General's office and until now it has not been returned to the Investigations Department of the Ministry of the Interior; therefore the documents could not be provided”.

5.  Conditions of the applicant's detention and transport

(a)  Conditions of the applicant's detention on remand

The applicant was detained in facility no. IZ-48/4 “Matrosskaya Tishina” and facility no. IZ-48/2 “Butyrskiy”. The Government indicate that between 16 February 1999 and 4 February 2000 the applicant was held in cell no. 507 of facility no. IZ-48/4* measuring 31.8 sq. m and equipped with ten sleeping berths.

As regards facility no. IZ-48/2, the applicant claims that cells were overcrowded and on occasions he had more than 150 cellmates.

Without specifying to which facility and which cell his submissions refer, the applicant further alleges that the Russian norm of 4 sq. m per inmate was insufficient for “healthy living”, that the usual food ration included rye bread, non-meat soup and boiled porridge without butter or sugar, that outdoor walks were only permitted for one hour a day and, in any event, he could not go outside as he could not climb the stairs. The cell windows were covered with metal blinds blocking natural light. The applicant also points to a “low level” of medical assistance and a “low threshold of sanitary and hygienic requirements”.

In support of his statements the applicant referred to his complaint about the conditions of his detention in facility no. IZ-48/4 that had been allegedly taken away by the facility administration. When the Court requested him to relate its contents, the applicant replied that he no longer remembered it. The Government indicate that an inquiry into the allegation was carried out, but no traces of the complaint in question could be found.

(b)  Conditions of the applicant's transport to and from the courthouse

The applicant describes as follows the conditions of his transport between the detention facility and the courthouse:

“On the day of a court session wake-up is at 5 a.m., followed by a search and other formalities. Until delivered to the courthouse the inmates are unable to rest for many hours, they are subjected to transport over many hours in an overcrowded van in inhuman conditions; the van calls in on the way at dozens of courthouses until the inmate reaches his destination. The court sessions are scheduled 5-8 hours after the wake-up without any conditions for rest. After the court session the torture is repeated in the reverse order. The inmate only arrives at his cell late at night... Throughout the whole of the day the inmate receives no food... [T]he inmate is subjected to this distress precisely on the day of court sessions when the most important events in the life of an accused are to take place...”

The applicant indicates that his personal situation was aggravated by a medical condition preventing him from climbing the stairs quickly enough.

On 5 May 1999 Ms Weisleib sent a complaint to the Prisons Administration Department about the conditions of the applicant's transport on 29 April 1999. She wrote that on that day an escort had hit the applicant and pejoratively referred to his presumed ethnic origin. Also, the applicant had been transported from the Zamoskvoretskiy District Court to facility no. IZ-48/4 for more than six hours, between 5 p.m. and 11 p.m., with 40 other inmates stuffed in the prison van and that he had been transferred six times from one van to another on the way to the facility. It appears that no response to the complaint was ever received.

According to the certificate provided by the Government, between 7 July 1999 and 20 January 2000 the applicant was transported four times to the Zamoskvoretskiy District Court and twice to the Moscow City Court. Each time the journey started at about 9 a.m. and ended on three occasions at about 5 p.m., once at 6.30 p.m. and twice at about 8.45 p.m. The applicant's longest absence from the detention facility was on 25 November 1999 when he was summoned to the Zamoskvoretskiy District Court for 11 a.m. The journey on that day started at 9.20 a.m. and ended on 8.55 p.m., i.e. it lasted 11 hours and 45 minutes.

B.  Relevant domestic law

For a summary of relevant provisions of the Russian law on pre-trial detention and time-limits for trial see Panchenko v. Russia (dec.), no. 45100/98, 16 March 2004.

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that the conditions of his detention on remand and the conditions of his transport to and from the court building amounted to inhuman treatment. The applicant relied on the conclusions of the Report of the Special Rapporteur, Mr Nigel S. Rodley, submitted on 16 November 1994 to the fifty-first session of the Commission on Human Rights of the Economic and Social Council of the United Nations (doc. E/CN.4/1995/34/Add.1).

2.  The applicant alleges a violation of Article 5 § 1 (c) of the Convention on two counts. First, he submits that his detention had been authorised on 2 December 1994 for two months; he was detained in Switzerland on 11 September 1997 under the Russian arrest warrant and, accordingly, the authorised period of his detention expired on 11 November 1997. He submits that his detention was unlawful after that date and until 13 July 1998 when an extension was authorised on the basis of correctly calculated time-periods. In this connection, the applicant claims that the authorisation of 10 June 1998 was also invalid because it was based on an incorrect starting date. Second, the applicant complains that his detention on remand was unlawful between at least 24 July and 12 August 1999 which period was not covered by any detention order.

3.  The applicant complains under Article 5 § 4 of the Convention that his complaint of 15 June 1998 concerning the unlawfulness of his detention was not considered by the Preobrazhenskiy District Court until 14 July 1998 and that the District Court justified the lawfulness of his detention with reference to a detention order issued by a deputy Prosecutor General the day before. The applicant also complains under this head that his complaint of 27 July 1999 concerning his unlawful detention after 24 July 1999 was never examined by a court because on 16 August 1999 the Preobrazhenskiy District Court refused to examine its merits.

4.  The applicant complains under Article 6 § 1 of the Convention about a violation of the “reasonable time” requirement in respect of the criminal proceedings against him.

5.  The applicant complains under Article 6 § 3 (c) of the Convention that between 4 and 22 March 1999 and between 23 July and 16 August 1999 he did not receive visits from his lawyers.

6.  Finally, the applicant complains under Article 13 of the Convention that he did not have effective remedies in respect of his complaints under Articles 3 and 5 of the Convention described above.

THE LAW

1.  The applicant complained under Article 3 of the Convention that the conditions of his detention in facilities nos. IZ-48/4 and IZ-48/2 of Moscow and the conditions of his transport between the detention facility and the courthouse had been in breach of Article 3 which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Submissions by the Government

As regards the conditions of detention in facility no. 48/4 of Moscow, the Government claim that the applicant enjoyed enhanced conditions of detention because the Russian authorities had undertaken not to worsen the applicant's conditions of detention in the course of extradition proceedings from Switzerland. The applicant was detained in cells designed for few inmates. Cells were equipped with a lavatory, tap water, ventilation, a fridge, a TV set, a radio, a shelf, a mirror and a dustbin. The applicant was provided with an individual sleeping berth, bedding, cutlery. He received food three times a day and could read books and magazines. The applicant could use shower once a week and walk outside for one hour a day. The Government claim that on the days of court hearings the wake-up was at 6 a.m., followed by a breakfast. The applicant was permitted to take to the court his personal food – purchased at the facility shop or received from the relatives – in unlimited quantity. Upon his return he received dinner.

As regards the conditions of detention in facility no. 48/2 of Moscow where the applicant was detained in cell no. 83 from 21 to 25 May 1999, the Government submit that he shared the cell with six inmates only and that he had an individual sleeping place and bedding.

Without specifying to which facility their submissions refer, the Government note that on an unspecified date after the applicant's arrival he was examined by a doctor and found to be “practically healthy”. Subsequent medical examinations did not establish any acute conditions or chronic diseases.

As regards the conditions of transport, the Government accept that the applicant's rights under Article 3 were violated insofar as the incident of 29 April 1999 was concerned. On that day the escorting police officer S. asked the applicant to move faster “in a tactless form” and a verbal quarrel between S. and the applicant, replete with mutual insults, ensued. On 10 June 1999 officer S. was formally reprimanded for the “moral insult” caused to the applicant and on 9 June 1999 the head of the escorting regiment apologised to the applicant. The applicant accepted the apologies and confirmed in writing that the matter had been settled.

The Government also accept that no take-out ration and no warm food was provided to the applicant during court proceedings which was a violation of applicable Russian regulations. Moreover, on 29 April 1999 the applicant was brought back to his cell at 10.35 p.m. which entailed a violation of his right to eight hours' night sleep. The Government submit that the applicant never complained about these shortcomings to prosecutor's offices or domestic courts. No other violations of the applicant's rights during his transport were established.

Finally, the Government accept that the applicant's lawyers were prevented from visiting him in March 1999 and in July-August 1999 because they had no appropriate authorisation required by the domestic law.

The Government invite the Court to declare the applicant's complaints under Article 3 manifestly ill-founded.

Submissions by the applicant

The applicant maintains his claims as regards the conditions of his detention. He points out, in addition, that the respondent Government did not contest that the cell windows were covered with metal bars blocking access of natural light. He also alleges that he could not take advantage of the opportunity to walk outside because of his “physical deformation” that prevented him from climbing stairs without assistance by others.

The applicant does not make any relevant comments concerning the conditions of his transport.

As regards the exhaustion requirement, the applicant submits that he did not lodge official complaints because he feared to aggravate his relationship with the facility administration and because such complaints would be “obviously meaningless”.

The Court's assessment

(a)  The Court firstly notes that it can deal with the above complaint only insofar as it concerns the conditions of the applicant's detention and transport after 28 June 1999. As regards the alleged violations that occurred before that date, including the incident of 29 April 1999 and the applicant's detention in facility no. IZ-48/2 in early May 1999, the application was lodged more than six months after these events.

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  The Court is not called upon to decide whether the applicant has exhausted domestic remedies in respect of the remainder of his complaints under Article 3 because it is in any event inadmissible for the following reason.

The Court recalls that the absolute prohibition of degrading or inhuman treatment enshrined in that Convention provision applies when a “minimum level of severity is attained” (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII). Measures depriving a person of his or her liberty may often involve inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).

The Court cannot accept the report by an international human rights organisation on which the applicant seeks to rely as conclusive evidence because it contains no information on the conditions of the detention at the time when the applicant was held there. The Court notes that the report had been prepared at least five years before the applicant was placed in the facility. Moreover, although the Special Rapporteur did visit facility no. IZ-48/4 “Matrosskaya Tishina”, he did not inspect any cells similar to the one where the applicant was held.*

As regards the applicant's detention in facility no. IZ-48/4, the Court notes that his complaints are rather vague and generic. He does not contest that his cell (no. 507 during the period under consideration) provided at least 3.1 sq. m per each inmate and that he had an individual sleeping berth and bedding. It appears that there was no overcrowding problem that may give rise an issue under Article 3 (see Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002-VI).

The Court notes that access of natural light was blocked – to a certain extent – by metal bars on windows. However, having regard to the fact that the applicant did not complain about the lack of artificial light or adequate access of fresh air, this situation is not so unsatisfactory in itself as to amount to a breach of Article 3.

The Court further notes that it has not been argued that the cell was unduly dirty or infested with insects (see, by way of contrast, Kalashnikov v. Russia, cited above, § 98). It is, however, true that access to showers was only possible once a week. However, given the accessibility of tap water in cells, it has not been established that this limitation deprived the applicant of the opportunity to keep himself clean to a degree which might have been incompatible with Article 3 (see Valašinas v. Lithuania, no. 44558/98, § 108 in fine, ECHR 2001-VIII). The applicant did not allege that the toilet did not offer sufficient privacy or that it was not adequately separated from the living area of the cell (see, by way of contrast, Kalashnikov v. Russia, cited above, § 99; Peers v. Greece, no. 28524/95, § 73, ECHR 2001-III).

The information about the applicant's chronic diseases requiring special treatment in the prison conditions was not substantiated with any medical evidence, although the applicant could have obviously undergone a complete medical examination upon his release from custody.

In sum, having regard to the above considerations, the Court finds that this part of the complaint under Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c)  As regards the allegations of inhuman and degrading conditions of the applicant's transport to and from the courthouse, the Court observes that during the period under consideration the applicant was brought to the court on six occasions in total. The applicant provides no details about these trips and does not contest the information supplied by the Government.

It appears therefore that the journey to the courthouse started approximately three hours after the wake-up. Before the departure the applicant could have breakfast. Neither party indicates how long the actual route to the courthouse took or how many inmates had to share the prison van. It further appears that in most cases the applicant arrived back to the facility in time for the evening meal.

The Court finds it regrettable that the inmates were not provided with warm food or at least a food ration by the facility administration. However, it observes that the applicant never complained about dearth or lack of food to any domestic authority.

Having regard to the foregoing considerations, the Court cannot find that the conditions of the applicant's transport to and from the courthouse amounted to the treatment in breach of Article 3.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complained under Article 5 § 1 (c) of the Convention that certain periods of his pre-trial detention had not been covered with appropriate authorisation. The Court, of its own motion, also raised the question under Article 5 § 3 whether the applicant's right to trial within a reasonable time or to release pending trial had been respected. Article 5 reads, in the relevant parts, as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government's objection as to the exhaustion of domestic remedies

The Government submit that the applicant failed to exhaust domestic remedies in respect of his complaints under Article 5 §§ 1 and 3. In particular, following the discontinuation of the criminal proceedings against him he did not institute a civil action under Articles 1070 § 1 and 1100 of the Civil Code for pecuniary and non-pecuniary damage caused by unlawful criminal prosecution or unlawful placement in custody.

The applicant replies that he was never officially informed about the discontinuation of the criminal proceedings which impeded his ability to take any kind of legal action.

As regards the possibility for the applicant to file an action against the State for damages, the Court recalls that the right not to be deprived of one's liberty “save in accordance with a procedure prescribed by law” and the right to “be brought promptly before a judge” after arrest is not the same as the right to receive compensation for detention. Paragraphs 1 and 3 of Article 5 of the Convention cover the former and paragraph 5 of Article 5 the latter. The court invited to rule on an action for damages caused by unlawful detention examines the matter after the events and therefore does not have jurisdiction to order release if the detention is unlawful, as Article 5 § 4 requires it should (see Weeks v. the United Kingdom, 2 February 1987, Series A no. 114, p. 30, § 61). A civil action for damages has accordingly no bearing on the question of exhaustion of domestic remedies in respect of the applicant's complaints under Article 5 §§ 1-4 (see, as a recent authority, Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003, with further references).

The Government's objection must therefore be dismissed.

Submissions by the parties

Neither the Government nor the applicant make comments on the merits of the complaints.

The Court's assessment

(a)  As regards the complaint concerning the alleged unlawfulness of the applicant's detention in 1998, the Court notes that the application was lodged more than six months after the final decision of the Moscow City Court concerning that period of the applicant's detention had been made on 3 August 1998 (see Ilijkov v. Bulgaria, no. 33977/96, Commission decision of 20 October 1997).

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  As regards the complaints concerning the alleged unlawfulness of the applicant's detention between at least 24 July and 12 August 1999 and an alleged violation of the applicant's right to trial within a reasonable time or release pending trial, the Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

3.  The applicant complained under Article 5 § 4 that his complaint of 15 June 1998 had not been examined “speedily” and that his complaint of 27 July 1999 had been never considered by a court. Article 5 § 4 reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Submissions by the parties

The Government submit that they are not in a position to draw any conclusions about compliance with the requirements of that Article because the documents related to the examination of the applicant's complaints about the unlawfulness of his detention were “prematurely destroyed due to a shortage of storage space in the court archive”. The Government make no comments on the merits of the complaint.

The applicant responds that the Government failed to provide any documents showing that the materials in question had in fact been destroyed. The applicant makes no relevant comments on the merits of the complaint.

The Court's assessment

(a)  As regards the 1998 proceedings, the Court notes that the application was lodged more than six months after the final decision in those proceedings had been made (see Ilijkov v. Bulgaria, cited above).

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  As regards the proceedings on the applicant's complaint of 27 July 1999 by which he sought to challenge his unlawful detention, the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The applicant complained under Article 6 § 1 of the Convention that the criminal charge against him had not been determined within a “reasonable time”. Article 6 § 1, in the relevant part, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government claim that this complaint is not “subject to consideration” because the criminal proceedings against the applicant were discontinued at the stage of preliminary investigation. They do not refer to any specific ground(s) for inadmissibility of this complaint envisaged in Article 35 of the Convention. The Government make no comments on the merits of the complaint.

The applicant claims that he is still a victim of the alleged violation because he was not granted any redress. As to the merits of the complaint, he submits that the overall duration of eight years was obviously in breach of the “reasonable time” requirement.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

5.  The applicant complained under Article 6 § 3 (c) of the Convention that he had not been allowed to see his lawyers in March, July and August 1999.

The Court recalls that a person may not claim to be a victim of a violation of his rights under Article 6 of the Convention that, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see, as a recent authority, I.I. v. Bulgaria (dec.), no. 44082/98, 25 March 2004, with further references). The Court notes that on 28 April 2000 the proceedings against the applicant were discontinued by the prosecution on the ground that his participation in the offence could not be proven. The Court considers that in these circumstances the applicant can no longer claim to be a victim of a violation of his right to a fair trial.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6.  Finally, the applicant complained under Article 13 of the Convention about the absence of an effective remedy in respect of his complaints under Articles 3 and 5 §§ 1 and 4 of the Convention. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

To the extent that the applicant complained under Article 13 that he did not have an effective remedy for his complaints under Article 3, the Court recalls that Article 13 only applies where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicant's complaint under Article 3 of the Convention is inadmissible as manifestly ill-founded. In these circumstances, the applicant did not have an “arguable claim” under Article 3, and there is no room for application of Article 13.

As regards the applicant's complaint under Article 13 insofar as it concerned the lawfulness of his arrest and detention in the meaning of Article 5 § 1 (c), the Court notes that the applicant could have applied to a court for redress and did so. There is nothing to suggest that that determination did not constitute an effective remedy, or that in the particular circumstances of the present case an appeal to a court was devoid of any chance of success (see Menesheva v. Russia (dec.), no. 59261/00, 15 January 2004). The requirement of effectiveness does not mean that the outcome of the proceedings should correspond to the applicant's objectives (see Kaijalainen v. Finland, no. 24671/94, Commission decision of 12 April 1996).

To the extent that the applicant also complained under Article 13 of the Convention about having been refused proper judicial review of the lawfulness of his detention after 24 July 1999, the Court notes that it will examine the same complaint under Article 5 § 4 of the Convention, which is a lex specialis in regard to Article 13 of the Convention in this respect (see Kambangu v. Lithuania (dec.), no. 59619/00, 17 June 2004) and the less strict requirements of Article 13 can be considered absorbed by the requirements of Article 5 § 4 (see De Jong, Baljet and Van den Brink v. the Netherlands, judgment of 22 May 1984, Series A no. 77, p. 27, § 60).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints that that his detention on remand was unlawful from 8 March 1999 and also excessively long, that his complaint of 27 July 1999 was not considered by a domestic court and that the length of the criminal proceedings against him was in breach of the “reasonable time” requirement;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 
Registrar President

* Subsequently renumbered as facility no. IZ-99/1.


* “Within this centre [Matrosskaya Tishina] the Special Rapporteur visited the cell block for juveniles, the exercise yard, the large general cells [for 35 inmates and more], a quarantine cell and the hospital” (§ 51 of the report et seq.).


NAKHMANOVICH v. RUSSIA DECISION


NAKHMANOVICH v. RUSSIA DECISION