FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64140/00 
by Yevgeniy Ivanovich ROZHKOV 
against Russia

The European Court of Human Rights (Fifth Section), sitting on 5 February 2007 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mr R. Maruste
 Mr A. Kovler
 Mr J. Borrego Borrego, 
 Mr M. Villiger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 30 October 2000,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 Yevgeniy Ivanovich Rozhkov, is a Russian national, who was born in 1966 and lives in Belgorod, Russia. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation before 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

The applicant is a former employee of the Belgorod Customs Office (Белгородская таможня) where he had occupied the post of Deputy Head of the Investigations Department (заместитель начальника отдела дознания).

On 28 October 1999 the applicant was arrested and detained. Some time thereafter the investigating authority instituted criminal proceedings no. 999161 against him on suspicion of bribery.

(a)  Pre-trial proceedings

(i)  Appointment of counsel A.M.

It appears that already upon his arrest the applicant had requested to be represented by counsel A.M.

On 29 October 1999 the applicant formally repeated his request to be represented by counsel A.M.

On the same date A.M. presented the relevant warrant (ордер) and was formally admitted to the case. He was present at the applicant’s interrogation which took place at around noon.

On 30 October 1999, the investigating authority instituted another set of criminal proceedings against the applicant, no. 999163, concerning a different incident that took place in 1998 in which the applicant was suspected of having abused his authority to coerce a woman to have intercourse with him. On the same date A.M. was questioned as a witness in connection with these proceedings.

(ii)  Disqualification of counsel A.M.

On 31 October 1999 the investigating authority decided to join these two sets of criminal proceedings under no. 999161, as both were instituted against the applicant. On the same date the investigating authority decided to bar defence counsel A.M. from representing the applicant on the ground of his participation as a witness.

On 5 November 1999 the applicant was formally charged with bribery under Article 290 of the Criminal Code (Уголовный кодекс РФ).

(iii)  The applicant’s complaints in respect of the disqualification of A. M.

On 15 November 1999 the applicant complained to the court that the disqualification of A.M. had been unlawful. A.M. had been first admitted as a defence counsel and only afterwards was he questioned as a witness. The applicant claimed that this had violated his right to have legal assistance of his own choosing.

On 20 January 2000 the Western District Court of Belgorod found the disqualification of A.M. to be lawful, stating that:

“... [A.M.] has been questioned as a witness. [The applicant’s] arguments that [A.M.] was questioned after [the applicant’s] arrest are groundless. An analysis of Article 67 § 1 of the Criminal Procedure Code reveals that a counsel who has been questioned as a witness may be disqualified irrespective of when he was questioned as a witness. The phrase ‘previously participated’ concerns only the participation of the prosecutor and other participants of the proceedings in processing of the case. A witness is not a participant in the proceedings and does not participate in the case. Under such circumstances, the disqualification of the counsel is justified.”

On 27 January 2000 the applicant lodged an appeal against this decision.

On 1 March 2000 the Belgorod Regional Court dismissed the applicant’s appeal. The court found that the applicant’s submissions that A.M.’s disqualification had been unjustified were unconvincing, because A.M. had been questioned as a witness which excluded his participation as a defence counsel.

The applicant continued to complain unsuccessfully about the unlawful disqualification of A.M. throughout the proceedings against him.

(iv)  The applicant’s access to the case file

On 24 January 2000 the applicant’s case was taken over by defence counsel I.Ya., obtained for him by his relatives.

According to the applicant, on 13-14 April 2000 he was allowed by the investigator to acquaint himself with various expert opinions prepared during the investigation. The applicant agreed to do this in the absence of counsel I.Ya. By 15 April 2000 he managed to examine almost two expert opinions, whereupon he was given 20 minutes to acquaint himself with the remaining six opinions. The applicant objected, but to no avail.

On 17 April 2000 the investigating authority decided that the investigation had been completed and that the applicant could start examining the case file, which consisted of three volumes (317 pages, 232 pages and 365 pages, respectively), three videos and an audiotape. The applicant was informed of this decision the next day. In response, the applicant submitted that he wished to examine the case file only with the assistance of his counsel.

On 18 April 2000, following a meeting with counsel I.Ya., the applicant dispensed with her services on the ground that she had little experience in cases involving serious charges such as his case. He requested that his examination of the case file be deferred until 24 April 2000, so that he could appoint a new counsel. His request for deferral was rejected. On 27 April 2000, following a failure to find a new counsel, the applicant requested that I.Ya. be reappointed.

On 28 April 2000 the investigator informed the applicant that counsel I.Ya. had been informed about his request of 27 April 2000 and that she would be admitted to the case as soon as she had presented the relevant warrant. In the meantime, the applicant was advised to start examining the case file on his own. The applicant refused to examine the case file without counsel I.Ya., claiming that, in her absence, the investigator could again resort to allegedly unlawful behaviour as on 15 April 2000. He further submitted that counsel I.Ya.’s warrant was already in the case file and she was not obliged to present a second one.

The Government submitted that on 3 May 2000 counsel I.Ya. informed the investigator that she intended to conclude a new legal aid agreement with the applicant before starting to work with the applicant’s case.

On 6 May 2000 the investigator found that the applicant was deliberately delaying the examination of the case file and decided to fix a schedule for this purpose which included: 10-11 May – Volume No. 1; 12 May – Volume No. 2; 13 May – video and audio materials; 14 May – a Sunday break; and 15 May – Volume No. 3.

On the same date, counsel I.Ya. presented the relevant warrant. She submitted that she would not be able to appear on 10 May 2000 because of her involvement in other proceedings.

Between 10 and 15 May 2000 the applicant examined 13 pages of the case file and the audiotape as counsel I.Ya. appeared on two afternoons on 12 and 15 May 2000. The rest of the time the applicant refused to examine the case file on his own.

On 16 May 2000 the investigator decided to extend the period for the examination of the case file and fixed a new schedule which included: 17 May – Volume No. 1; 18 May – video materials; and 19 May – Volumes Nos. 2 and 3. The investigator referred to counsel I.Ya.’s failure to appear despite being aware of the schedule and found that her assertions of making daily trips to another town for preparation of court hearing materials in another civil case were unconvincing as, despite her involvement in that case since 5 May 2000, she did not participate in the relevant trial.

Between 17 and 18 May 2000 the applicant managed to examine further 10 pages of the case file. No examination of the video materials took place due to the absence of counsel I.Ya. The applicant requested that the period for the examination of the case file be extended.

On 19 May 2000 the investigator decided to discontinue the applicant’s examination of the case file, finding that:

“... [the schedule fixed for 10-15 May 2000] was disrupted because of [counsel I.Ya.] ...Thus, from 18 April to 18 May 2000 [the applicant] and [counsel I.Ya.] examined 23 pages of the case file and an audio recording. [Such behaviour] is considered by the investigating authority as an obvious and deliberate delaying of the examination of the case file with the intention to be released from detention, taking into account that [the authorised period of pre-trial detention] expires on 28 May 2000... Since it is impossible to further extend [the period for examination of the case file], as it is necessary to transmit the case file to [the prosecutor] for examination and preparation of the bill of indictment, the investigating authority finds it necessary to discontinue [the applicant’s] and his counsel’s examination of the case file.”

Between 28 October 1999 and 25 May 2000 the case was pending before the prosecution authorities. On the latter date the bill of indictment was approved and the applicant’s case file was sent for examination to the trial court.

(b)  Trial

(i)  The applicant’s motion of 30 May 2000

On 30 May 2000, following the transmission of the case to the court, the applicant lodged a motion with the Regional Court requesting that counsel A.M. be admitted to the case and that the case be remitted for an additional investigation because of the unlawful disqualification of counsel A.M. and an incomplete examination by him of the case file. He also requested his release.

On 20 June 2000 the Belgorod Regional Court dismissed the applicant’s motion and scheduled a hearing for 26 June 2000. In refusing to release the applicant, the court found that the applicant and his counsel had had sufficient time to study the case file and the schedule fixed by the investigator had been reasonable. No violation of the applicant’s rights of defence or other procedural violations had been disclosed.

On 21 June 2000 the applicant lodged an appeal against this decision. He also raised other complaints.

Subsequently, on 13 September 2000, the Supreme Court of Russia, presided by judge G., dismissed the applicant’s appeal, finding the decision of 20 June 2000 to be lawful and well-founded.

(ii)  Oral evidence given by witness Ye.

Meanwhile, at the hearing of 30 June 2000, the Regional Court stated that witness Ye. was sick with chronic bronchitis and was hospitalised. The applicant and his counsel objected to this witness’ statement made during the investigation being read out in court, alleging that Ye. was the most crucial witness and they wanted to cross-examine him. Their objection was overruled.

It appears that Ye. informed the court about his treatment which started on 29 June 2000. He did not object, that the court hear the case without him and confirmed all his earlier witness statements.

At the hearing of 7 July 2000 the applicant requested that the proceedings be adjourned until the recovery of witness Ye. The court dismissed his request, stating that it was not known how much time Ye. would need to recover.

(iii)  Judgment of 14 July 2000

On 14 July 2000 the Belgorod Regional Court found the applicant guilty as charged and sentenced him to four years’ imprisonment. The court examined and referred to several items of evidence, including oral and written statements of at least nine witnesses, namely, M., Do., Du., E., Ye., T., O., Kh. and B., as well a number of other items of evidence such as audio tapes of the applicant’s conversations, several expert reports and reports on examination of the applicant’s entrance hall.

(c)  Appeal proceedings

On 25 July 2000 the applicant lodged an appeal against this judgment in which he extensively complained that the special operation aiming at the applicant’s arrest on the spot had entailed numerous violations of the law and that the case had been fabricated. On 22 November 2000 the applicant supplemented his appeal, complaining that he had not had access to all the materials of the case file, that he had been deprived of the right to have legal assistance of his own choosing, that the decision to join two sets of proceedings had been unlawful and that he had not been tried by a jury. He also complained about the inability to examine witness Ye.

On 30 January 2001 the Supreme Court of Russia examined and dismissed the applicant’s appeal against the judgment of 14 July 2000. At the hearing the applicant unsuccessfully attempted to challenge presiding judge G. on the ground that she had participated in the examination of the lawfulness of his detention on 13 September 2000.

2.  The applicant’s arrest and alleged ill-treatment

(a)  Background information on the applicant’s state of health

Prior to the institution of criminal proceedings on 28 October 1999, the applicant had twice suffered brain concussion for which he had received in-patient treatment in 1994 and 1997.

On 23 June 1999 the applicant was diagnosed by an oculist as having “initial retinal angiopathy and essential hypertension of the right eye”. The oculist prescribed some eye drops and advised the applicant to undergo regular medical observation.

It appears that the applicant was underwent observation by an ophthalmologist, in the course of which the above diagnosis was confirmed, including a suspicion of glaucoma. He was advised to use the appropriate eye drops twice a day on a constant basis and to undergo a surgical treatment of the right eye.

(b)  Events of 28-29 October 1999

On 28 October 1999, at 10.10 p.m., the applicant was arrested in the entrance hall to his apartment building by the officers of the Belgorod Regional Department of the Fight against Organised Crime (hereafter “the DFOC”, Управление по борьбе с организованной преступностью при УВД Белгородской области) when he was allegedly taking a bribe. The applicant’s arrest was the outcome of a planned operation which was initiated on the basis of statements made by the individuals E. and Ye. According to them, the applicant had made a promise to Ye. that he would release E.’s son from detention if she paid him 1,000 USD. Ye., who was the counsel of E.’s son, actually participated in the operation and was the person who was handing over the money to the applicant at the time of his arrest.

The applicant submits that the DFOC officers applied force during his arrest. His arms were twisted behind his back, whereupon he was pushed down on his knees and had his face forcefully pressed against the concrete floor. The applicant briefly remained in this position. As a result of the blow he urinated in his pants. He submitted that he had felt sick but his request for medical assistance had been refused.

According to the Government, two DFOC officers, Z. and O., entered the applicant’s house porch shortly after the applicant had received a sum of money from Ye. They saw the applicant standing near the elevator’s door and ran to him shouting “Stand still, it is the police!” Officer Z. got hold of the applicant’s arms and raised them up to prevent the applicant from disposing of any evidence he might have had in his pockets. The applicant attempted to break free and, in response, the officers forced him to prostrate himself and fettered his hands with handcuffs. The Government denied that any other forms of physical coercion had taken place.

The applicant submitted that the officers had been accompanied by a cameraman and two women who had participated as witnesses in the examination of the scene of the incident. According to him, during the whole period of the examination of the location, the applicant was kept standing in wet pants and the women laughed at his discomfiture. He also had to undress down to his underwear in front of these girls as his clothes were seized as evidence. The applicant’s apartment was searched, whereupon, at about 11.00 p.m., he was taken to the District Police Station in Belgorod (Белгородское РОВД), where at about 2.25 a.m. the next morning the arrest record was drawn up.

The Government referred to sworn statements by eye-witnesses Kh. And B. who had described an incident immediately after the apprehension and prior to the applicant’s personal search. Despite fettered hands behind his back, the applicant reached for the money in the right pocket of his pants and threw it away.

On 29 October 1999 DFOC officers Z. and O. reported to their superior that the applicant had actively resisted arrest, as a result of which force had been used: the applicant’s hands had been restrained and he had been laid down on the floor with his face down. According to the documents from the case file submitted by the Government, the applicant became acquainted with these reports on 15 May 2000.

(c)  First medical examination

On 29 October 1999, at 4.05 p.m., the applicant was examined in the Police Station by a forensic medical expert of the Regional Department of Forensic Medical Examination of Belgorod (Областное бюро судмедэкспертизы г. Белгорода) following his complaints about dizziness and a slight feeling of nausea. The expert’s report contained the following conclusions:

“Skin hyperaemia is displayed on the rear of the right forearm in the area of the radiocarpal joint between the interior and the exterior condyle, 11 x 0.5 cm. A similar one is displayed in the area of the left radiocarpal joint next to the exterior condyle, 3 x 0.4 cm, and on the left side of the forehead, 1 x 0.2 cm. An abrasion is displayed on the front side of the left knee-joint, 2 x 1 cm, covered by a dry red smooth surface at skin level. A similar abrasion is displayed on the palmar surface of the lower part of the right forearm, 0.3 x 0.3 cm, surrounded by a 0.5 cm hyperaemia. A similar hyperaemia of soft tissues is displayed on the lateral surface of the proximal phalanx of the middle finger of the right hand, 0.4 x 0.2 cm. No other injuries have been detected.

... [the above injuries] were caused possibly on 28 October 1999 by hard, blunt objects which had a moderately traumatic surface and did not cause harm to health.”

(d)  Subsequent medical examinations

On 15 November and 22 December 2000 the applicant was examined by an outside neurologist. Having heard and examined the applicant, the doctor diagnosed him as having “after-effects of closed craniocerebral injuries” (see below).

(e)  The applicant’s complaints about the events of 28-29 October 1999

On 12 January 2000 the applicant complained to the South-Eastern Transport Prosecutor (Юго-восточный транспортный прокурор) and the Belgorod Transport Prosecutor (Белгородский транспортный прокурор) that, in the course of his arrest, DFOC officer Z. and another police officer, whom he would be able to identify, allegedly in the absence of any resistance on his part, deliberately twisted his hands behind his back, whereupon officer Z. did a knee-wheel as a result of which he quickly fell and hit his head against the concrete floor sustaining various injuries, including brain concussion. Allegedly, the applicant requested that criminal proceedings be instituted in respect of these events.

(f)  Written evidence given by officers Z. and O. acting as witnesses

On 10 February 2000 officers Z. and O., acting as witnesses in the applicant’s criminal case and giving evidence under oath, reiterated their previous explanations of 29 October 1999 concerning the use of physical force in respect of the applicant. They submitted that, in response to the applicant’s resistance, they had forced him down onto the floor and fettered his hands.

3.  The applicant’s detention pending criminal proceedings

The applicant was taken into custody on 28 October 1999.

(a)  The applicant’s detention pending criminal investigation

(i)  Detention order of 31 October 1999 and related proceedings

On 31 October 1999 the Belgorod Transport Prosecutor (Белгородский транспортный прокурор) authorised the applicant’s detention on remand, on the ground that:

“... being at large, [the applicant] can obstruct the establishment of the truth, and also taking into account the dangerousness of the offence committed by him...”

On 11 November 1999 the applicant contested the lawfulness of his detention on remand before the courts. In his application, he submitted, inter alia, that he had symptoms of brain concussion and also suffered from glaucoma which required in-patient treatment and surgery, something that could not be ensured in the remand centre and would, therefore, negatively affect his ability to defend himself effectively. He further submitted that he had a permanent place of residence in Belgorod, and that he was married and had two minor children.

On 23 November 1999 the Oktyabrskiy District Court of Belgorod (Октябрьский районный суд г. Белгорода) found the applicant’s detention on remand to be lawful. The court stated that, as the applicant was charged with bribery involving a large sum of money, he could be detained on remand on the sole ground of the dangerousness of the offence. Furthermore, the court noted that, when deciding on the preventive measure, the investigating authority had taken into account the applicant’s personality, his occupation and age, the seriousness of the offence committed by him, and also the fact that, being at large, he could obstruct the establishment of the truth. The court further stated that it did not possess any evidence indicating that the applicant was unable to stay in the detention facility for health reasons. Despite the fact that the applicant had not admitted his guilt, the investigating authority had sufficient grounds for detaining him on remand.

On 29 November 1999 the applicant lodged an appeal against this decision.

On 29 December 1999 the Belgorod Regional Court (Белгородский областной суд) dismissed the applicant’s appeal, stating that the applicant was charged with a very serious offence. Furthermore, when authorising the applicant’s detention, the prosecutor had also taken into account the fact that, being at large, he could obstruct the establishment of the truth. The court further found that the applicant had failed to present any medical documents certifying his inability to stay in the remand centre for health reasons.

(ii)  Detention order of 24 December 1999 and related proceedings

The order of 24 December 1999 of the Belgorod Transport Prosecutor and the South-Eastern Transport Prosecutor authorised the extension of the investigation and of the applicant’s detention on remand for one month until 28 January 2000. It enumerated and examined the evidence against the applicant obtained by the investigator so far. It further stated that the two months’ term of the applicant’s previously authorised detention would expire on 28 December 1999 and that the investigator needed more time to complete some further investigative actions, such as phonoscope and psychiatric forensic expert examination, to check the witness statements of individual M. The order cited the risk that the applicant could obstruct the establishment of truth and the gravity of his charges to justify further extension of his detention.

On 30 December 1999 the applicant contested the lawfulness of the extension of his detention on remand before the courts, using arguments similar to his previous ones. He also denied the allegations of intending in any way to interfere with the course of justice or to put pressure on witnesses. He also alleged that his state of health was deteriorating and that no medical assistance was provided to him in the remand centre.

On 20 January 2000 the Western District Court of Belgorod (Федеральный суд Западного округа г. Белгорода) upheld the extension of the applicant’s detention on remand, having confirmed the need to carry out investigative actions mentioned in the order of 24 December 1999 and citing the gravity of the applicant’s charge and the possibility of him obstructing the establishment of the truth.

On 27 January 2000, the applicant and his defence counsel lodged an appeal against this decision, raising the same arguments.

On 1 March 2000 the Belgorod Regional Court dismissed the appeal of the applicant and his defence counsel as groundless and upheld the order of 24 December 1999 and the decision of 20 January 2000.

(iii)  Detention order of 24 January 2000 and related proceedings

By order of 24 January 2000 the Belgorod Transport Prosecutor and the South-Eastern Transport Prosecutor authorised the extension of the applicant’s detention on remand for one further month until 28 February 2000. The order contained a detailed description of the evidence obtained by the prosecution so far and an extensive progress report on the course of investigation during the last month. Thus, the verification of witness statements of individual M. referred to by the investigator in the decision of 24 December 1999 led to the questioning of four more witnesses who had all given evidence against the applicant on account of the latter’s suspected participation in a bribery incident in 1998 and 1999. This incident was to be added to the list of charges brought against the applicant. The order also stated that, among other things, the expert examinations mentioned in the decision of 24 December 1999 had been ordered but not yet completed and that it was necessary to check one more episode described by the four witnesses above. Finally, in deciding to extend the applicant’s detention the investigator stated that, despite having been caught on the spot, the applicant flatly denied his involvement in the imputed crimes and that by filing his multiple complaints and requests he attempted to protract the investigation and to distort the factual circumstances of his activities. The investigator established that the applicant, if released, might obstruct the establishment of the truth.

On 8 February 2000 the applicant complained about the unlawfulness of the extension of his detention on remand before the courts. It appears that he denied the allegations of intending in any way to interfere with the course of justice or to put pressure on witnesses.

On 18 February 2000 the Western District Court of Belgorod confirmed the extension of the applicant’s detention on remand, stating that the order of 24 January 2000 was well-motivated and that the investigator took account of all relevant circumstances, including the gravity of his charges, the applicant’s personality traits, age, state of health etc.

This decision was upheld on appeal by the Regional Court on 29 March 2000.

(iv)  Detention order of 28 February 2000 and related proceedings

On 28 February 2000 the Belgorod Transport Prosecutor and the South-Eastern Transport Prosecutor extended the applicant’s detention until 28 March 2000. The order reported on the progress of the investigation of the case, having noted that all necessary investigative actions in respect of episode of bribery in 1998-1999 had been completed and that the applicant would be able to acquaint himself with a finalised version of charges no later than on 2 March 2000. The investigator expected to receive the completed expert examinations referred to in the decision of 24 December 1999 no later than 10 March 2000. Having regard to the need to finalise the indictment and to allow the applicant some time to study the case file, the investigator again extended the applicant’s detention for one month.

The applicant contested the decision in court.

On 31 March 2000 the Western District Court of Belgorod rejected this appeal. The court upheld the order, finding that the reasons advanced by the investigator were relevant and well-founded.

The applicant, with the assistance of his defence counsel, appealed against these decisions.

On 26 April 2000 the Belgorod Regional Court in the final instance dismissed the appeals of the applicant and his defence counsel and upheld the previous decisions.

(v)  Detention order of 21 March 2000 and related proceedings

By order of 21 March 2000 the Belgorod Transport Prosecutor and the South-Eastern Transport Prosecutor authorised the extension of the applicant’s pre-trial detention for one more month, until 28 April 2000. The decision contained an account of the progress of the investigation and stated that the relevant expert had gone sick and was yet to complete one of the expert examinations mentioned in the previous detention orders. With reference to the need to finalise the indictment and to allow the applicant some time to study the case file, the investigator extended the applicant’s detention for one more month, having mentioned that the applicant, if released, might obstruct the investigation.

On 31 March 2000 the applicant contested the lawfulness of the extension of his detention on remand before the courts, using arguments similar to his previous ones.

On 10 April 2000, having heard the applicant and his counsel, the Western District Court of Belgorod rejected their arguments, having stated that under the applicable domestic law the applicant’s pre-trial detention could be authorised with the sole reference to the gravity of the applicant’s charge. In any event, the court noted that the reasons for detention had been set out in the investigating authority’s order, were lawful, well-reasoned and justified, and had been approved by the prosecutor.

The order of 21 March and the decision of 10 April 2000 were upheld on appeal by the Regional Court on 10 May 2000.

(vi)  Detention order of 21 April 2000 and the applicant’s related complaint

On 21 April 2000 the Deputy General Prosecutor of Russia (заместитель Генерального прокурора РФ) authorised the extension of the investigation and of the applicant’s detention on remand until 28 May 2000. The relevant order counting eight pages contained a detailed description of the previous extensions of the applicant’s detention as well as the progress report on the present state of the investigation. It stated that the applicant had commenced studying the case file on 18 April 2000 and that from that date onwards he had attempted to protract the investigation by dismissing his previous counsel, refusing the new counsel found by his mother and requesting her personally to travel to Moscow to find a suitable candidate. With this in mind and having regard to the need to finalise the indictment and respond to requests that the applicant was very likely to make after the study of the case file, the investigative authority therefore decided to extend the applicant’s detention for one more month. The investigating authority did not find it acceptable to release the applicant during this period, citing the same reasons as in its previous decisions.

On 25 April 2000 the applicant contested the lawfulness of the extension of his detention on remand before the courts. He submitted, inter alia, that the investigation had terminated and that the dangerousness of the offence should not serve as a mandatory ground for detention.

This complaint reached the District Court on 26 April 2000.

On 25 May 2000 the South-Eastern Transport Prosecutor approved the bill of indictment, and the case was sent to the Belgorod Regional Court for trial.

(b)  Detention pending court proceedings

(i)  Decision of 26 May 2000 and the applicant’s related complaints

On 26 May 2000 the Western District Court of Belgorod rejected the applicant’s application for release made on 25 April 2000. In doing so, the court stated that the applicant was charged with an offence for which he could be detained on the sole ground of its dangerousness. The court also added that relevant reasons and motives had been set forth in the investigating authority’s order 21 April 2000 which had been authorised by the prosecutor.

On 31 May 2000 the applicant lodged an appeal against this decision with the Regional Court.

This appeal reached the Regional Court on 2 June 2000. According to the Government, it was joined to the applicant’s case file and examined by the Regional Court on 20 June 2000 (see below).

Throughout the period between 2000 and 2003 the applicant complained to various public authorities about the fact that no decision had been taken on his appeal lodged on 31 May 2000.

By letter of 7 July 2003 the President of the Belgorod Regional Court informed the applicant that:

“Your statement that the appeal lodged against the decision of the Oktyabrskiy District Court of Belgorod of 26 May 2000 was left without consideration is unconvincing. By the date when the court received this appeal, i.e. 2 June 2000, the criminal case against you was already put before the Regional Court and was no longer being processed by the investigating authority and the prosecutor whose decisions on detention you were contesting.

Taking this into account, your appeal was included in the case file ... as the arguments raised in it could be examined only at the stage of scheduling the date of [the first] court hearing. Having decided to schedule a hearing and refused to change the preventive measure imposed on you, the judge accordingly found your pre-trial detention to be lawful.”

(ii)  Decision of 20 June 2000 and the applicant’s related complaints

On 30 May 2000, following the transmission of the case to the court, the applicant lodged a motion with the Regional Court requesting that he be released because of his glaucoma.

On 20 June 2000 the Belgorod Regional Court dismissed the applicant’s motion and scheduled a hearing for 26 June 2000. In refusing to release the applicant, the court examined the lawfulness of the applicant’s on-going detention on remand. In particular, it found that the preventive measure in the form of detention had been imposed in accordance with the type and degree of dangerousness for society of the offences with which the applicant was charged and that no substantial violations of the requirements of the domestic law had occurred. It then decided to reject his request for release as groundless.

On 21 June 2000 the applicant lodged an appeal against this decision, arguing for his release and raising a number of other arguments.

On 13 September 2000 the Supreme Court of Russia, presided by judge G., dismissed the applicant’s appeal against the decision of 20 June 2000, finding this decision to be lawful and well-founded.

(iii)  The applicant’s release from custody

On 6 September 2002 the applicant was released on parole.

4.  Conditions of detention in remand centre IZ-26/1

(a) Alleged lack of adequate medical assistance

On 5 November 1999 the applicant was placed in remand centre IZ-26/1.

On 11 November 1999 the applicant applied in writing to the head of the remand centre. He submitted that he had suffered brain concussion as a result of a blow against a concrete floor in the course of his arrest. He further submitted that he had been previously twice treated for brain concussion and now he was experiencing the same symptoms: dizziness, lack of appetite, nausea, asthenia and a strong headache.

On 15 November 1999, upon invitation by his relatives, the applicant was examined by an outside neurologist. The doctor, having heard the applicant’s description of his symptoms, diagnosed him as having the “after-effects of closed craniocerebral injuries”. He was prescribed injections of aminophylline, pyracetam and vitamin B6, and nootropil and vinpocetine in pill form. The applicant submitted that these drugs had been given to him by his wife, as they were not available in the remand centre.

On 23 November 1999 the applicant applied to the Belgorod Transport Prosecutor, requesting a meeting with his wife to receive a delivery of medicaments. He indicated that no medical assistance was provided to him by the remand centre and the supply of medication in the centre was inadequate.

On 1 and 14 December 1999 the applicant applied to the head of the remand centre, stating that, despite the medication delivered to him by his wife, his health had significantly deteriorated, he was suffering from strong asthenia, his memory deteriorated and he did not have a clear mind. He requested that measures be taken. It does not appear that he specified them.

On 22 December 1999 the applicant was again examined by an outside neurologist whose report, prepared two days later, contained the following conclusions:

“[The applicant] has [previously] been examined by a neurologist and diagnosed as having after-effects of repeated closed craniocerebral injuries. He has received a full course of therapy. On 22 December 1999 [the applicant] was again examined by a neurologist and diagnosed as having after-effects of closed craniocerebral injuries coupled with the asthenovegetative syndrome and disseminated neurological symptomatology. Treatment has been prescribed and a visit by an oculist recommended. Currently I find [the applicant’s] general state of health to be satisfactory. He receives treatment and is under constant medical observation.”

From the extracts from the applicant’s prison medical file submitted by the Government, it appears that the entry into the file dated 22 December 1999 stated that the applicant’s state of health had improved considerably following the administration of the course of medication. The doctor prescribed him a treatment of ten days in this respect.

On 2 February 2000 the applicant again applied to the head of the remand centre. He submitted that, despite the course of treatment prescribed by the neurologist in connection with the brain concussion, he was not getting better and still feeling very bad. Moreover, he started suffering from unbearable pain in the eyes. He requested that he be examined by a neurologist and an oculist.

On 14 March 2000 the applicant was examined in the remand centre by an oculist invited at his wife’s expense from a local clinic. The oculist’s report contained the following conclusions:

“... [the applicant] suffers from myopia of medium degree, retinal angiopathy and secondary glaucoma (essential hypertension).

Recommendations: (a) instillation of [eye drops], at a dose of 0.25%, into the right eye before going to bed and into the left eye – twice a day; (b) an in-patient examination using special equipment; (c) surgical treatment in order to retain optic functions, as glaucoma causes atrophy of optic nerves which leads to loss of eyesight to the point of blindness. The post-surgery period must include two-three weeks in a hospital, followed by medical observation during 1 to 1.5 months. It is desirable to wait six months before operating the second eye; (d) regular check-ups by an oculist not less than once every three months.”

According to the applicant, the oculist did not prescribe any specific treatment against the pain in his eyes as this could be relieved only by means of surgery and warned the applicant that a delay in undergoing surgery might lead to blindness.

On 16 March 2000 the applicant complained to the Head of the Criminal Execution Department of the Ministry of Justice (начальник Управления исполнения наказаний МЮ РФ по Белгородской области) and the head of the remand centre that the administration of the detention facility was not providing any surgical treatment for glaucoma.

On 17 March 2000 the head of the medical unit of the detention facility, upon an inquiry by the applicant’s counsel, provided a medical certificate which indicated that the applicant was undergoing regular check-ups in the medical unit in connection with his head trauma. It further repeated the recent findings of the oculist, stating that the applicant was suffering from retinal angiopathy of a first degree and glaucoma of both eyes, and needed surgical treatment in order to retain his eyesight. It was noted that the applicant was currently undergoing conservative therapy.

On 15 and 17 March 2000 the applicant allegedly discussed his health condition with the head of the medical unit who told him that medical assistance was provided only to those patients who were in extreme need, the applicant not being one of them. He further said that he was not able to relieve the applicant’s pain in the eyes, to call an oculist or to perform surgery in the detention facility. He had the authority to transfer the applicant for surgery to the hospital for detainees in Voronezh, but only after the judgment against the applicant would became final. This could not be done before then, as there was no corresponding instruction from the prosecutor or the court.

On 27 and 28 March 2000 the applicant repeated his complaints of 16 March 2000, indicating that, despite the diagnosis of glaucoma recently confirmed by the oculist, he received no treatment for this illness. He further indicated that his complaints about the unbearable pain in his eyes, from which he had been suffering for the past months, were being ignored, and requested that surgery, to which he did not object, be performed. These complaints apparently led to another discussion with the head of the medical unit who again refused to arrange for surgery.

On 28 March 2000 the applicant declared a hunger strike in protest against, inter alia, the lack of medical assistance. He was placed in solitary confinement where he stayed 14 days, refusing to eat.

The applicant’s prison medical file has an entry on 31 March 2000 according to which the applicant was examined by the doctor in connection with his hunger strike. The conclusion was that the applicant’s general condition was satisfactory, the consciousness was clear and the hemodynamic indices were within the normal limits.

On 12 April 2000 the applicant was taken, upon the investigating authority’s order, for a medical examination by a psychiatrist, a neurologist and an oculist in policlinic No. 1 in Belgorod. The applicant alleged that the oculist diagnosed him as having “atrophy of the optic nerves of both eyes”, which could progressively deteriorate and result in blindness. There is however no documentary proof of that conclusion.

The applicant submitted that from April to 16 December 2000 (i.e. the date when he had been transferred to another remand centre) the head of the medical unit of remand centre IZ-26/1 had not been following the recommendation of the oculist made on 14 March 2000 to have the applicant examined at least once every three months, had not provided any treatment, had not taken any measures to relieve the applicant’s pain in his eyes and had not ordered surgery. The necessary medication was provided for the applicant by his wife.

An entry of 16 May 2001 in the applicant’s medical file states that the applicant was examined by the doctor who performed some tests and authorised his transportation.

Following his conviction, on 7 June 2001 the applicant was transferred to the transit point of penitentiary facility ZhKh-385/18 in the Republic of Mordoviya. It appears that after his transfer to correction institutions the applicant was exempt from works on health grounds.

On that date the prison doctor examined him and concluded that the applicant complained about the pain in the eyes. Upon the outcome of the tests, the doctor decided that the applicant’s heart, lungs, his urine and blood tests all were in normal condition.

Thereafter the applicant was transported to facility ZhKh-385/5. He arrived there on 8 June 2001. During the examination the doctor diagnosed the applicant with glaucoma of both eyes and recommended the applicant to see an oculist and neuropathologist.

In September 2001 the applicant was transferred to the prison hospital for in-patient treatment in the surgical department in connection with, among other things, his glaucoma, where he stayed, apparently with interruptions, at least until 2 March 2002.

On 22 September 2001 the oculist diagnosed the applicant as having “medium myopia of both eyes ... recommended [among other things] to control intraocular pressure”.

On 24 September 2001 the applicant was accepted for an in-patient treatment in the surgical department of the prison hospital with the diagnosis: “Myopia of medium level. Suspicion of glaucoma”.

From the case file it transpires that the applicant requested the doctors not to administer any treatment as long as he had not met his family. Apparently, the applicant did not stay long in hospital.

On 9 October 2001 the applicant was again accepted for an in-patient treatment in the prison hospital. Having thoroughly examined the applicant and performed various tests, the doctors diagnosed the applicant as having “Myopia of medium level. Progressing”. The diagnosis did not mention any sign of glaucoma.

On 6 September 2002 the applicant was released.

(b)  Overcrowding and lighting

From 5 November 1999 to 16 December 2000 and from 4 April 2001 to 16 May 2001 the applicant was kept in remand centre IZ-26/1 in Belgorod. He submits that the cells where he was kept were continuously overcrowded and had round-the-clock strong fluorescent lighting that was never softened or turned off, causing unbearable pain to his eyes.

It appears that throughout his entire stay in the remand centre the applicant unsuccessfully complained both orally and in writing about the overcrowding and the lighting to the head of the remand centre and the Head of the Criminal Execution Department.

B.  Relevant domestic law

1.  Constitution

No one may be subjected to torture, violence or any other cruel or degrading treatment or punishment (Article 21).

2.  Law on the Police of 1991 (закон «О милиции»)

Police officers have the right to use physical force, including martial arts, to arrest persons who have committed a crime or an administrative offence and to overcome resistance against lawful demands, if it is not possible to perform the police duties with non-violent methods (Section 13). When using physical force, the police officers must warn the person concerned about their intention to do so, unless any delay may pose a danger to the life and health of citizens and police officers, or may lead to other grave consequences, or when such warning happens to be inappropriate or impossible in the given circumstances. The officers must further attempt to diminish any possible damage, depending on the character and degree of dangerousness of the offence and of the persons who have committed it and the extent of resistance. A police officer shall be held accountable if excessive physical force is used (Section 12).

3.  Law on the Conditions of Detention of Suspects and Accused of 1995 (закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений»)

Inmates are entitled to medical assistance (Section 17). If the health of an inmate deteriorates, he must immediately undergo medical examination by the medical employee of the detention facility. If an inmate suffers from a serious disease, the administration of the detention facility must immediately inform the prosecutor who may carry out an inquiry into this matter (Section 24).

4.  Decree of the Ministry of Justice of 12 May 2000 on the “Internal regulations of remand centres” (Приказ Минюста РФ от 12 мая 2000 г. N. 148 «Об утверждении Правил внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской Федерации»)

Inmates should apply for medical assistance to a medical employee of the remand centre during his daily visit of cells and, in case of a serious disease, to any employee of the remand centre. The employee who has been contacted by an inmate is obliged to take measures to provide medical assistance (paragraph 131). Ambulatory care is provided to inmates in cells and in specialised premises of the medical unit of a remand centre. Medication is provided individually in doses and quantities recommended by a doctor according to the relevant information in the patient’s medical records (paragraph 132). The medical unit of a remand centre should have an inpatient department. If inmates are in need of urgent or specialised medical assistance, which cannot be provided in a remand centre, they should be transferred for inpatient treatment to penitentiary institutions or, if necessary, to public health institutions according to the prescribed procedure (paragraph 133).

5.  Criminal Procedure Code of 1961

(a)  Pre-trial detention

According to the Code in force at the relevant time, in making the decision on detention, the prosecutor was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial, or obstruct the establishment of the truth, or re-offend (Section 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his profession, age, state of health, family status and other circumstances (Section 91). A prosecutor’s decision ordering detention on remand was to be reasoned and justified. The accused was to be informed of the decision on detention and explained the procedure for lodging an appeal against it (Section 92). Persons charged with an offence envisaged by, inter alia, Section 290 of the Criminal Code could be detained on remand on the sole ground of the dangerousness of the offence (Section 96).

The maximum permitted period of pre-trial detention was two months, which could be extended up to three months and later up to six months if it was impossible to complete the investigation and in the absence of grounds for release. In exceptional circumstances, the period of pre-trial detention could be extended for a period exceeding six months, but no longer than eighteen months (Section 97). A preventive measure was to be cancelled by a reasoned decision of the investigating authority or the prosecutor when it ceased to be necessary, or to be changed into a stricter or milder one if the circumstances of the case so required (Section 101).

(b)  Proceedings to examine the lawfulness of pre-trial detention

The detainee, his counsel or representative could challenge the decision imposing or extending the pre-trial detention before the courts (Section 220.1). The judge was required to review the lawfulness and justification of imposition or extension of the pre-trial detention no later than three days from receipt of the relevant materials. The judge could either dismiss the challenge or otherwise cancel the pre-trial detention and order the detainee’s release. A judge’s decision was to be reasoned (Section 220.2).

(c)  Detention during the trial

After the investigation had been completed, the prosecutor was to approve the bill of indictment and forward the case to the court within five days. Thereafter, all complaints and requests were to be forwarded directly to the court (Sections 214 and 217). In ordering, extending or cancelling the detention on remand during the trial, the courts were also guided by the above-mentioned Sections 89, 91, 92, 96 and 101. When setting the date of the first hearing, the judge was to decide as to whether or not the defendant could be released (Section 222). The judge was further obliged to examine any application for release made by the defendant (Section 223).

(d)  Legal representation and joinder of criminal cases

An advocate could not participate in the case as a defence counsel if he had earlier participated in the case as a judge, prosecutor, investigator, person carrying out the inquiry, expert, specialist, translator or a witness (Section 67.1). Cases involving charges against the same person on account of several offences could be joined (Section 26).

(e)  Access to the case file

Once he was satisfied that the evidence obtained was sufficient to prepare the bill of indictment, the investigator was to inform the accused that the investigation had been completed and that he had the right to acquaint himself with all the materials of the case file whether in person or with the assistance of his defence counsel. If the accused requested a defence counsel to be appointed to participate in the examination of the case file, or if a defence counsel had already been engaged in the case, the investigator was to grant access to the case file both to the accused and his defence counsel. In such cases, access to the case file could be deferred until the appearance of the defence counsel, but no longer than five days. If the defence counsel appointed by the accused was unable to appear within the fixed time-limit, the investigator was to take measures to call another defence counsel. If video or audio recordings were used during the investigation, these materials had to be shown to the accused and his defence counsel. The accused when examining the case file had the right to copy as much data as he wished. Access to the case file of the accused and his defence counsel could not be restricted in time. However, if they were openly delaying the examination of the case file, the investigator could take a reasoned decision, approved by the prosecutor, to fix a specific schedule for access to the case file (Section 201). In the process of the examination of the case file, the defence counsel had the right to, inter alia, have meetings with the accused of unlimited number and length, and to acquaint himself with all the materials of the case file and to copy as much data as he or she wished (Section 202).

(f)  Examination of witnesses

At the preliminary investigation stage, the investigator could hold a confrontation between two previously questioned persons whose statements contained substantial contradictions (Section 162). At the trial stage, if any of the parties or any witness failed to appear, the court should inquire as to whether or not the defendant, his defence counsel, the prosecutor and other participants in the proceedings objected to the continuation of the trial, whereupon the court should decide to continue or adjourn the trial (Section 277). А witness statement made during the investigation could be read out in court if the witness was absent from the court hearing for reasons excluding his appearance in court (Section 286).

COMPLAINTS

1.  In his original application form dated 30 October 2000 the applicant complained under Article 3 that he had been subjected to ill-treatment in the course of his arrest on 28 October 1999. He alleged that, in the absence of any resistance on his part, he had had his head hit against the concrete floor, sustaining injuries and brain concussion.

2.  He further complained under Article 3 that he had received no medical treatment in remand centre IZ-26/1 for the after-effects of brain concussion and glaucoma. As far as the latter was concerned, he submitted that he had been losing his eye sight, he had had constant and unbearable pain in the eyes which had not allowed him to sleep at night, and he had been under the constant threat of becoming blind at any moment unless surgery had been performed. No such surgery had been performed, despite recommendations by an oculist, nor had any other measures been taken to treat him or to relieve his condition. Medication had been provided to him by his wife as medication had been unavailable in the remand centre.

3.  The applicant complained about his allegedly lengthy detention on remand. He submitted that the investigating authority and the courts had failed to take into account his aggravated health condition when continuously extending his detention. The reasons given to justify his detention, i.e. the dangerousness of the offence and the possibility of him obstructing the establishment of the truth, were inadequate especially since all the witnesses had been questioned with the use of a video camera and, by 26 May 2000, the date when the court once again confirmed the extension of his detention, the case had been already put before a court for trial. He relied on Articles 6 and 13.

4.  The applicant complained that his application for release made on 25 April 1999 had not been speedily examined by a court. He referred to Article 6 in this respect.

On 17 April 2001 the applicant supplemented his initial application with the following complaints:

5.  Under Articles 3, 5 § 1 and 8 he complained about the events of 28 October 1998. In particular, he submitted that following his apprehension he had been humiliated as he had been kept standing in wet pants and then had to undress in front of two young girls who laughed at him. He further submitted that his deprivation of liberty between 10.10  p.m., when he had been apprehended, and 2.25 a.m. the next morning, when the arrest record had been drawn up, had been unlawful as this record ought to have been drawn up immediately after he had been brought to the police station at 11.00 p.m. He also submitted that the search of his flat had been unlawful.

6.  The applicant complained that his appeal against the decision on detention of the Western District Court of Belgorod of 26 May 2000 had never been examined. He relied on Article 13.

7.  The applicant complained under Article 6 §§ 1 and 2 that in reaching its judgment of 14 July 2000, the Belgorod Regional Court had failed correctly to evaluate the circumstances of the case and the evidence before it, and had ignored his allegations that the case had been fabricated. He further complained that the court had refused to call certain witnesses on his behalf and that he had not been tried by a jury.

8.  The applicant complained under Article 6 § 3 (b) that, while suffering from glaucoma and not receiving any medical treatment, he had not been given sufficient time and facilities to prepare his defence. According to the schedule fixed and then extended by the investigator, he had only had six days to study 914 pages of case file materials, which was physically impossible. The Regional Court allegedly ignored the fact that he was not fully acquainted with the case file.

9.  The applicant complained under Article 6 § 3 (c) that he had been deprived of legal assistance of his own choosing. The applicant submits that the questioning and disqualification of counsel A.M. on 30 October 1999 had been unlawful as he had already been formally admitted to the case as his counsel. Furthermore, the joinder of the two sets of criminal proceedings too had been unlawful as he had never been charged under the second set of proceedings which were eventually terminated for lack of corpus delicti. In any event, A.M.’s disqualification would have been lawful only under the second set of proceedings, if the applicant wished to have him as a counsel, but not under the first set of proceedings in which A.M. had already been admitted as a counsel.

10.  The applicant complained under Article 6 § 3 (d) that during the investigation he had not been confronted with Ye. who nevertheless was a crucial witness. Nor had he been able to question witness Ye. in court.

11. The applicant complained under Article 6 § 1 that the participation of presiding judge G. in the Supreme Court’s examination on 30 January 2001 of his appeal against the judgment of 14 July 2000 had been unlawful as she had previously presided over a decision on his detention on 13 September 2000.

12.  The applicant complained under Article 13 that all his complaints about the falsification of the case against him lodged with various public authorities, such as the President, Parliament, the Supreme Court, the General Prosecutor’s Office, etc., had not brought alone any results. He also relied on Article 14, submitting that these complaints were unsuccessful because he was a person charged with a criminal offence.

13.  On 6 September 2002 the applicant raised additional complaints about overcrowding and 24-hour fluorescent lighting in remand centre IZ-26/1.

THE LAW

1.  Under Article 3 of the Convention the applicant alleged that he had been subjected to ill-treatment during his arrest on 28 October 1999. This provision reads as follows:

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

(a)  The parties’ observations

The Government submitted that the applicant’s account of the events was inaccurate and failed to correspond to the medical report in so far as the latter only mentioned minor bruises which had not inflicted any harm on his health. They also referred to the statements of two policemen and two third persons who had witnessed the applicant’s personal search following the arrest. According to the Government, the applicant actively resisted the police during his apprehension and, as a result, the officers used physical force on him. To illustrate the applicant’s attitude and behaviour during the arrest, the Government referred to the episode immediately after the apprehension and prior to the applicant’s personal search in which, despite fettered hands, he tried to reach for the money in his pockets and throw it away. Overall, they concluded that the complaint was groundless.

The applicant refuted the Government’s arguments and contended that he had been physically abused by the police during the arrest. He denied any resistance on his part and contested that the physical force by the policemen had been lawful.

(b)  The Court’s assessment

The Court recalls that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000-IV). Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita, cited above, § 121).

In the instant case, the Court observes that the parties did not dispute that in the course of the applicant’s arrest the applicant had been forced by the police to prostrate himself with his hands handcuffed behind his back. It remains to be determined whether, in the circumstances of the present case, these actions constituted an ill-treatment attaining the minimum level of severity in the meaning of Article 3.

Having examined the case file and the parties’ submissions, the Court notes that the applicant allegations about the lack of resistance on his part are fully rebutted by reports and sworn witness statements made by two apprehending officers on 29 October 1999 and 10 February 2000 and there is nothing either in the case file or in his own submissions to support these allegations. The Court further observes that the medical certificate drawn on 29 October 1999 indeed reflects a number of small bruises and abrasions on the applicant’s forearm, carpal and knee joints, forehead and fingers which, in the doctor’s view, did not cause any harm to the applicant’s health. The Court finds that the certificate corresponds to the Government’s version of events, namely that the policemen, having faced the applicant’s resistance, applied physical force to lay him down on the floor and then fettered his hands with the handcuffs. As regards the applicant’s allegations of a brain concussion allegedly received as a result of the sudden fall, the Court finds it unsupported as there is no reference to it in the medical certificate of 29 October 1999 drawn up shortly after the arrest, whilst the after-effects of the brain concussion described by a prison doctor on 15 and 22 December 2000 were diagnosed from the applicant’s own words and only two weeks after the incident. Overall, the Court considers that in the circumstances of the case the actions of the policemen and the applicant’s resulting injuries failed to reach the level of severity required to fall within the ambit of Article 3 (see, mutatis mutandis, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 95).

Accordingly, the Court finds this complaint manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

2.  The applicant also complained under Article 3 of the Convention about the lack of adequate medical treatment in remand centre IZ-26/1 for the after-effects of brain concussion and glaucoma.

(a)  The parties’ observations

The Government referred to the data from the applicant’s prison medical file and argued that both the medical advice and all necessary medication had been available to the applicant in remand centre IZ-26/1 and after his transfer to correctional institutions.

The applicant disagreed, arguing that the information submitted by the Government was incomplete. He requested the Court to invite the Government to submit his entire medical file.

(b)  The Court’s assessment

In the light of the parties’ submissions, the Court finds that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

3.  The applicant complained that his detention on remand was unlawful and too long. He relied on Articles 6 and 13 of the Convention in this connection. These complaints fall to be examined under Article 5, which in so far as relevant, provides as follows:

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

...

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

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

(a)  The parties’ submissions

The Government submitted that the applicant’s pre-trial detention had been covered by valid and reasoned court decisions in full compliance with the domestic rules of procedure.

The applicant disagreed with the Government and maintained his complaints.

(b)  The Court’s assessment

As regards the applicant’s complaint about the alleged unlawfulness of his pre-trial detention, the Court finds that the period between 28 October 1999 which is the undisputed date of the applicant’s arrest, and 14 July 2000 when the trial court convicted the applicant at first instance was covered by valid and reasoned court decisions. In the absence of any allegations of arbitrariness, the Court is satisfied that the applicant’s pre-trial detention was lawful.

In so far as the applicant complains that his pre-trial detention lasted too long (28 October 1999 - 14 July 2000), the Court recalls that the relevant period was eight months and sixteen days. Firstly, it is undisputed that the applicant’s arrest occurred, as it had been established by the domestic courts, immediately after he had received a bribe and that here there existed a reasonable suspicion of him having committed bribery. The Court next observes that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, §§ 152 and 153).

Turning to the present case, the Court notes that all detention orders taken by the authorities pending criminal investigation were made at monthly intervals, contained a detailed and up-to-date account of the state of investigation and referred to the risk that if released the applicant might obstruct the establishment by the authorities of the relevant circumstances of the case. All detention orders referred to the fact that the applicant, despite being caught in the act, flatly denied his involvement in the imputed crimes and undertook various steps to delay and impede the investigation. All orders argued against the applicant’s release as some of the investigative actions, including interviews of witnesses and possible victims of the applicant’s criminal activities, were not yet complete (see, by contrast, Shishkov v. Bulgaria, no. 38822/97, § 62, ECHR 2003-I (extracts)). Having studied the progress of the investigation in the applicant’s case, the Court is unable to conclude that the authorities failed to display “special diligence” in the conduct of the proceedings. In view of the above and taking into account that the period of one month and nineteen days during which the trial court examined the merits of the applicant’s case is not unreasonably long, the Court concludes that the applicant’s pre-trial detention was justified.

Accordingly, the Court finds this part of the application manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and rejects it pursuant to Article 35 § 4.

4. The applicant also complained that the authorities failed speedily to examine his application for release of 25 April 2000. He relied on Articles 6 and 13 of the Convention in this connection. The Court will examine this complaint under Article 5 § 4 of the Convention, which states 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.”

(a)  The parties’ submissions

The Government submitted that the applicant’s application had been received on 26 April 2000, but since the case file had been under examination by the competent Prosecutor’s Office until 25 May 2000, its examination was delayed until 26 May 2000. In their view, the delay was not excessive.

The applicant disagreed with the Government and maintained his complaints.

(b)  The Court’s assessment

In the light of the parties’ submissions, the Court finds that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

5.  The applicant complained that he had not been tried by a jury, that the decision to join the two sets of criminal proceedings had been unlawful and that the participation of presiding judge G. in the Supreme Court’s examination on 30 January 2001 of his appeal against the judgment of 14 July 2000 had been unlawful as she had previously presided over a decision on his detention on 13 September 2000. These complaints fall to be examined under Article 6 of the Convention which, in its relevant parts, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Firstly, the Court observes in respect of the grievance about the lack of a jury trial that at the material time the applicant did not have the right to be tried by a jury under the domestic law (see, by contrast, Callaghan and Others v. the United Kingdom, no. 14739/89, Commission decision of 9 May 1998, Decisions and Reports 60, p. 296). Since the Convention or the Court’s case-law do not guarantee, as such, the right to a jury trial (see Klimentyev v. Russia (dec.), no. 46503/99, 17 September 2002), the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.

Secondly, in so far as the applicant is dissatisfied with the decision to join two sets of criminal proceedings, the Court notes that the domestic courts at two instances carefully reviewed the impugned investigator’s decisions and eventually upheld them as lawful and well-founded. There is nothing in the case file to suggest that by joining two sets of criminal proceedings in the applicant’s case, the domestic investigative authorities and courts acted in flagrant disregard of the applicable domestic laws governing their jurisdiction and procedures (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 98-99, ECHR 2000-VII; Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002; and Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).

Finally, as to the participation of judge G. who had previously presided in the proceedings on the applicant’s detention on 13 September 2000 in the Supreme Court’s examination of his appeal against the judgment of 14 July 2000, the Court recalls that the participation of a judge in decisions on pre-trial detention may indeed in certain circumstances cast doubt on his impartiality (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, §§ 49-53). However, the mere fact that a trial judge has also dealt with the case at the pre-trial stage cannot be held as in itself justifying fears as to his impartiality (see Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, § 33). In the present case, in contrast to the Hauschildt case cited above where the trial judge participated in nine of the decisions continuing the applicant’s detention and referred to a “particularly confirmed suspicion” in doing so, judge G. of the Supreme Court of Russia only once presided over an appeal decision according to which the applicant had to remain in custody during the examination of the case on the merits at first instance. In its relevant decision the appeal court did not make any statements as to the degree of suspicion or the applicant’s possible guilt but simply stated that the decision of the first instance court continuing the applicant’s detention had been well-founded. The Court finally notes that this decision was taken after the merits of the case had been examined at first instance and the applicant had been found guilty. In such circumstances, the Court does not find sufficient evidence to conclude that the applicant’s fear that the presiding judge of the appeal court lacked impartiality in deciding on the applicant’s appeal was objectively justified.

Overall, the Court concludes that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

6.  The applicant further complained under Article 6 of the Convention that he had not been given sufficient time and facilities to prepare his defence in that he had been given too short a time to study the case file. He further submitted that the questioning and disqualification of counsel A.M. on 30 October 1999 had been unlawful as he had already been formally admitted to the case as his counsel. Moreover, he had had neither a confrontation during the investigation with Ye. who had been a crucial witness, nor had he been able to question witness Ye. in court. Furthermore, in his view, the Belgorod Regional Court had failed properly to assess the facts of the case and the evidence before it, had ignored his allegations that the case had been fabricated, and had refused to call certain witnesses on his behalf. Article 6 of the Convention, in so far as relevant, provides as follows:

“1.  In the determination of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence;

(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 under the same conditions as witnesses against him;”

(a)  The parties’ submissions

The Government argued that the authorities had acted in full compliance with the domestic law when giving the applicant access to the case file and that the allegedly short time for the study of the case file had been fully attributable to the abusive conduct of the applicant and his counsel. As regards the disqualification of counsel A.M., the Government submitted that the authorities had complied with the applicable provision of the domestic law and that the relevant rule was reasonable and justified. As to the alleged failure of witness Ye. to appear in court, the Government argued that the applicant’s argument in this respect had been thoroughly examined by the domestic courts at two instances and reasonably rejected as unfounded.

The applicant disagreed with the Government and maintained his complaints. He claimed that the time for study of the case file was insufficient and that the authorities unlawfully and deliberately disqualified counsel A.M. The applicant further contested that witness Ye. had been sick at all. According to him, the case against him had been fabricated.

(b)  The Court’s assessment

(a)  In so far as the applicant is dissatisfied with the allegedly insufficient time to study the case file, the Court recalls that the “facilities” which everyone charged with a criminal offence should enjoy, include the opportunity to acquaint himself for the purposes of preparing his defence with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, (dec.), no. 29835/96, 15 January 1997, and Foucher v. France, judgment of 18 March 1997, Reports 1997-II, §§ 26-38). In addition, the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party will be aware that the evidence have been adduced and will get a real opportunity to comment thereupon (Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, §§ 66 and 67).

On the facts, the Court observes that from the copies of the relevant parts of the case file it transpires that on 17 April 2000 the investigator decided that the applicant could start his examination of the case file as from 18 April 2000. Having learned about this decision on the latter date, the applicant dismissed his counsel I.Ya. on the ground that she had “little experience in cases involving serious charges such as his case” and refused to study the case file on his own, insisting on the presence of a new counsel who was yet to be found and appointed. Since apparently the applicant could not find any replacement, on 27 April 2000 he requested re-appointing I.Ya. It appears that for some reason I.Ya. was unable to conclude a new legal aid agreement with the applicant and present a new warrant until 6 May 2000. The study of the case file by the applicant and counsel I.Ya. only commenced on 10 May 2000 and took place also sporadically on two afternoons on 12 and 15 as well as on 17 and 18 May 2000. For most of the time the applicant refused to study the case file on his own. As a result of this behaviour by the defence, first on 6 May 2000 and then on 16 May 2000 the investigator decided that the defence was deliberately protracting the proceedings and ordered to fix a schedule for the examination of the case file by the defence, namely six days between 10 and 15 May and three days from 17 to 19 May 2000. Having found that the defence had manifestly failed to comply with the schedule, on 19 May 2000 the investigator decided to discontinue the applicant’s examination of the case file with reference to their abusive behaviour.

The Court observes that the defence in the present case had in total almost a month between 18 April and 19 May 2000 to acquaint themselves with the case file which in itself was a sufficient period of time to study properly the case file consisting of three volumes (317, 232 and 365 pages respectively) and some video and audio materials. Whilst it is true that the parties disagree as to the assessment of the conduct of the defence and the investigator during that period, the Court notes that, even on the assumption that the applicant’s dissatisfaction with the quality of the legal aid offered by counsel I.Ya. was objectively supported and that it justified the temporary dismissal of counsel, it does not appear that the decisions of the investigator dated 6 and 16 May 2000 and fixing the schedule for the examination of the case file by the defence were arbitrary or otherwise unreasonable. The Court finds that the schedule in question was a measure justified by the need to avoid delays in the proceedings and respect the time-limits. It allowed the defence at least eight full days from 10 to 19 May 2000 to study the case file. It does not appear, in view of the lapse of the time since 18 April 2000 and the fact that counsel I.Ya. had participated in the proceedings from 24 January 2000 and had been given notice of the schedule four days in advance, that the defence was objectively precluded from complying with it. In addition, it was not substantiated by the defence that the involvement in the other proceedings objectively prevented the counsel from consulting the file at the relevant dates or make copies of the relevant material. Accordingly, the Court concludes that the authorities provided the applicant and his counsel with a reasonable opportunity to acquaint themselves with the case file. This being so and given the lack of evidence of any unjustified limitations on the applicant’s ability to study the case-file or to examine further arguments or evidence submitted by the prosecution during the later stage of proceedings, the Court concludes that the applicant was not placed at a substantial disadvantage vis-à-vis the prosecution in this respect.

(b)  As to the applicant’s complaint about the questioning and disqualification of counsel A.M. on 30 October 1999, the Court recalls that whilst it is true that Article 6 §§ 1 and 3 (c) guarantee to everyone charged with a criminal offence the right to represent himself through legal assistance of his own choosing, this right, as the Court has ruled on several occasions, is not absolute and may be subject to reasonable restrictions (see, for example, Croissant v. Germany, judgment of 25 September 1992, Series A no. 237-B, § 29, and Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 45, ECHR 2002-VII).

In the present case, the counsel chosen by the applicant, A.M., was formally admitted to represent him on 29 October 1999, the date on which the applicant was first interrogated. On 30 October 1999 a separate set of criminal proceedings, which concerned a different incident involving the applicant, was instituted and the applicant’s already appointed counsel was questioned as a witness in connection with the second incident. On 31 October 1999 the two sets of proceedings were joined and A.M. was barred because of his participation as a witness. Whilst it is true that no charges were brought against the applicant in connection with the second incident and that apparently that part of the proceedings was eventually terminated for the lack of a corpus delicti, the Court finds no evidence in the case file to indicate that the institution of the second set of proceedings and their joinder was done by the investigating authority in bad faith or as a part of a deliberate ruse to oust an “unwanted counsel”. In view of the above and since the joinder of the two sets of proceedings was not unlawful under the domestic law, the Court concludes that the decision to exclude the involvement of A.M. as a defence counsel with reference to his participation in the proceedings as a witness (see, for example, K. v. Denmark (dec.), no. 19524/92, 5 May 1993) was not arbitrary or unreasonable.

(c)  As regards the applicant’s submissions about the inability to cross-examine witness Ye., the Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and that, as a rule, it is for the national courts to assess the evidence before them, the task of the Court being to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see, for example, Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, § 51). The Court further recalls that, according to its case-law, all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases. Thus, the use of statements obtained at earlier stages of proceedings is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 of the Convention, provided that the rights of the defence have been respected (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 27, and Delta v. France, judgment of 19 December 1990, Series A no. 191-A, §§ 34-37).

In the present case, the Court observes that witness Ye. was summoned to the hearing of 30 June 2000 but failed to appear because he was undergoing an extensive course of an in-patient treatment of chronic bronchitis in a hospital. It appears that he informed the trial court about his illness and requested to excuse his absence, fully maintaining his previous statements made at the pre-trial stage of proceedings. Having examined the request, the domestic courts at two instances excused his absence and admitted his pre-trial statements without examining him in person, having noted that it was unknown how much time Ye. would need to recover and that the adjournment of the proceedings, as requested by the defence, would lead to unnecessary delays. The Court does not find this decision arbitrary given in particular that the domestic courts carried out a detailed analysis of the evidence in the case-file and found the statements of this witness to be corroborated by a series of other items of evidence, including audiotapes of the applicant’s conversations preceding the bribery incident, expert reports as well as oral and written statements of at least eight other witnesses (see, in a somewhat similar context, Ferrantelli and Santangelo, cited above, §§ 52-53). As there is nothing in the case file or in the parties’ submissions to suggest that the applicant, personally and with the assistance of his defence counsel, was unable properly to contest the above evidence and cross-examine relevant witnesses in the courtroom in person, the Court accepts that the admission of statements of witness Ye. did not fail to respect the rights of the defence.

(d)  In so far as the applicant complained that the domestic courts had refused to call certain witnesses on his behalf and generally failed to examine his case properly, the Court recalls that Article 6 § 3 (d) does not require as such the attendance and examination of every witness on the behalf of an accused and a court is justified in refusing to summon witnesses whose statements could not be of any relevance in the case (see, for example, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, § 33). On the facts, the Court observes that the applicant failed to substantiate both before the domestic courts and this Court the necessity of calling this or that particular witness and that the domestic courts decisions in this respect do not appear arbitrary or unreasonable.

(e)  Finally, as to the applicant’s complaint about the alleged fabrication of the charges against him, the Court finds that the applicant has not sufficiently made out his case. In so far as the applicant is dissatisfied with the unsuccessful outcome of proceedings in his case, the Court observes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that he, personally and through his defence counsel, was fully able to present his case and contest the evidence that he considered false. Having regard to the facts as submitted by the applicant the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

The Court reaches the overall conclusion that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

7.  The applicant complained under Article 13 that his complaints about the fabrication of the case against him lodged with various public authorities had not had any results. He also relied on Article 14, submitting that these complaints were unsuccessful because he was a person charged with a criminal offence.

The Court observes that the applicant had his case examined by the competent domestic courts in conformity with the requirements of a fair trial as guaranteed by Article 6 of the Convention. Furthermore, the applicant’s allegations under Article 14 of the Convention are unsubstantiated. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

8.  In his supplementary application form of 17 April 2001 the applicant also complained under Articles 3, 5 and 8 of the Convention that following his apprehension on 28 October 1998 he had been humiliated as he had been kept standing in wet pants and then had to undress in front of two women who laughed at him. He also complained that his detention on 28-29 October 1998 between 10.10 p.m. and 2.25 a.m. the next morning had been unlawful. The applicant further considered that the search of his flat on the same date had been unlawful. He also complained that his appeal against the decision of the Western District Court of Belgorod of 26 May 2000 had remained unexamined. In his supplementary application of 6 September 2002, the applicant complained about overcrowding and round-the-clock fluorescent lighting in remand centre IZ-26/1.

As regards the applicant’s complaints about the events of 28-29 October 1998, the Court notes that the applicant never raised these complaints either expressly or in substance before the relevant domestic authorities. Even assuming that the applicant had no effective remedies available, the complaints were brought by the applicant on 17 April 2001 which is more that six months after the events in question took place.

In so far as the applicant complained about the alleged lack of examination of his appeal of 31 May 2000 against the decision of the Western District Court of Belgorod of 26 May 2000, the Court finds that the six months time-limit in respect of this complaint started running on 20 June 2000 at the latest, which was the date of the next detention hearing before the Regional Court. Since the applicant did not raise this question before the Court until 17 April 2001, the complaint was introduced out of time.

Finally, as to the applicant’s complaint about overcrowding and constant lighting in remand centre IZ-26/1 first raised on 6 September 2002, the Court notes that the applicant raised these complaints before the head of the remand centre and the relevant department of the Ministry of Justice. However, even assuming that these were effective remedies, the six months’ period must be calculated at the latest from 16 May 2001, i.e. the date when he was transferred from the above remand centre to a correctional facility. It follows that this complaint, too, was brought out of time.

Overall, the Court concludes that the remainder of the application was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the alleged lack of adequate medical assistance in remand centre IZ-26/1 under Article 3 of the Convention and his complaint that the appeal of 25 April 2000 was examined with a delay of more than one month under Article 5 § 4 of the Convention;

Declares inadmissible the remainder of the application.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

ROZHKOV v. RUSSIA DECISION


ROZHKOV v. RUSSIA DECISION