FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67542/01 
by Pavel GUSEV 
against Russia

The European Court of Human Rights (First Section), sitting on 9 November 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mrs F. Tulkens
 Mrs N. Vajić
 Mr A. Kovler
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 29 December 2000,

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 Pavel Vladimirovich Gusev, is a Russian national, who was born in 1981 and lives in St. Petersburg. He is represented before the Court by Mrs O. Tseytlina, a lawyer practising in St. Petersburg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

A.  Alleged ill-treatment of the applicant

1.  Incident on 13 May 1998

On 13 May 1998 the applicant received a phone call from the operational officer of police station no. 44 of St. Petersburg, Mr K. He was told to come to the station for a “talk”.

The applicant submitted a copy of the judgment of the St. Petersburg City Court of 20 May 1997, by which Mr K., then the operational officer for juvenile matters, had been convicted for more than thirty counts of sexual harassment of boys and sentenced to eight years’ imprisonment but relieved from the punishment by virtue of a general amnesty act. On 11 June 1998 the Supreme Court upheld that conviction on appeal. According to the Government, Mr K. was dismissed from the police on 31 July 1998. The applicant asserted that he had continued to work at the police station “on an informal basis”.

On 20 May 1998 the applicant’s mother complained about Mr K.’s “tactless behaviour” towards her son (a copy of the complaint was not made available to the Court). In her complaint of June 2001 (see below) she also alleged that Mr K. had made her son sign “some papers” and then locked the door and told him to do push-ups in the nude.

The head of the criminal investigations division of the St. Petersburg police ordered an inquiry. On 26 and 27 May 1998 a senior operational officer obtained statements from the applicant, his mother, and Mr K. The applicant stated that Mr K. had told him to do push-ups but denied that Mr K. had beaten or touched him. The applicant’s mother stated that Mr K. had refused to inform her about the charges against her son but he had not insulted or offended her. She had not witnessed any acts of violence or injuries on her son. The statements by the applicant and his mother were followed by their handwritten mentions, attesting to their accuracy. In his handwritten depositions, Mr K. and another police officer D. indicated that the applicant’s mother had come to the police station, that they had unsuccessfully tried to reason with her but she would not listen and threatened with complaints.

On 2 June 1998 the police closed the inquiry. Relying on the statements by the applicant, his mother and his mother’s friend Ms S., the investigating officer found that no force had been applied to the applicant and that Mr K. had not insulted his mother. On the other hand, his mother had behaved rudely towards the police officers and repeatedly interfered with their attempts to interview her son.

On 26 June 2000 two complaints by the applicant’s mother concerning “unlawful acts by officers of police station no. 44” were forwarded by the Chair of the Commission for Law Enforcement and Rule of Law of the St. Petersburg Legislative Assembly to the Primorskiy District prosecutor for taking appropriate measures. The applicant’s mother complained, in particular, that her son had been sexually harassed by Mr K. in May 1998.

According to the letters of the acting Primorskiy District prosecutor, those complaints were rejected as unsubstantiated. The applicant’s mother was told that on 2 June and 19 July 2000 decisions had been made not to initiate criminal proceedings against Mr K. for either abuse of power or sexual harassment.

2.  Incident on 15 April 2000

On 15 April 2000 the applicant was taken by Mr K. and Lieutenant I. to police station no. 44. According to the administrative offence report prepared by Lieutenant I., the applicant drove a car without a driving licence. The applicant denied it; he made a hand-written mention on the report that he had merely sat in the passenger’s seat.

It appears that the applicant’s mother complained that the applicant had been beaten and mishandled during the arrest (a copy of the complaint was not made available to the Court). A prosecutor opened an inquiry on 4 May 2000. Lieutenant I. denied that he had used force on the applicant.

In his handwritten statement of 11 May 2000 addressed to the prosecutor of the Primorskiy District of St. Petersburg, the applicant explained that he had lost the car registration certificate and planned to obtain a new one. He continued as follows:

“I consider that the police officers did not commit any violations [of the law] and I have no claims against them. I do not know why my mother complained, I did not ask her [to complain].”

On 14 August 2000 an assistant prosecutor of the Primorskiy District decided not to institute criminal proceedings, finding that the applicant’s mother’s allegations were unsubstantiated.

The applicant’s mother continued to send complaints to various State officials concerning the alleged ill-treatment of her children and herself. They concerned the two incidents described above as well as other events unrelated to the present application.

On 23 June 2001 the applicant’s mother sent a detailed account of the alleged ill-treatment and harassment of her boys by Mr K. and other officers of police station no. 44 to the Ombudsman, the Prosecutor General, the Minister of the Interior, the Minister of Justice and other State officials.

In the framework of an additional inquiry ordered by the Prosecutor General’s Office, the Primorskiy District prosecutor obtained statements from four acquaintances of the applicant and his mother, their neighbour and a doctor of the Primorskiy District emergency unit.

As regards the incident on 15 April 2000, the prosecutor found that there was no evidence of the ill-treatment described by the applicant’s mother. Two of friends of the applicant, the applicant himself and Lieutenant I. denied that he had been beaten or punched. The trauma doctor did not recall that the applicant or his mother had ever visited her and there was no medical record of any injuries they had sustained. Thus, the applicant’s mother’s allegations were unsubstantiated.

On 3 August 2001 the assistant Primorskiy District prosecutor decided not to institute criminal proceedings against the police officers and Mr K. On 9 August 2001 that decision was upheld by the St. Petersburg City prosecutor in charge of juvenile matters.

Further decisions refusing institution of criminal proceedings were issued on 5 November 2001 and 1 November 2002.

B.  Criminal proceedings against the applicant and his placement in custody

1.  First criminal case (no. 1-1536\00)

In 1998 a criminal case was opened against the applicant (the case number appears to be 1-1536\00). He was charged with a minor theft, an offence under Article 158 § 1 of the Criminal Code, and signed an undertaking not to leave the town.

On 2 February 2000 the Primorskiy District Court of St. Petersburg convicted the applicant of a minor theft and sentenced him to probation of an unspecified duration. The applicant’s lawyer appealed.

On 5 July 2000 the St. Petersburg City Court upheld the conviction but relieved the applicant from the punishment on the basis of an amnesty act passed by Parliament on 26 May 2000.

2.  Second criminal case (no. 1-2415\00 or 968711)

In early 1999 a criminal case was opened against the applicant on suspicion of his having stolen, in January 1999, car parts having a total value of RUR 200 (EUR 7.50). Referring to the first set of criminal proceedings against the applicant, the prosecutor preferred the charge of theft aggravated by repetition and causing substantial damage, an offence under Article 158 § 2 of the Criminal Code.

On 19 April 2000 the Primorskiy District Court ordered the applicant’s retrieval and arrest for the following reasons:

“On 2 February 2000 [the applicant] received a copy of the bill of indictment in this criminal case. He was summoned, by a phone call, to the court hearing at 10 a.m. on 18 April 2000, but he did not show at that time.

Due to [the applicant’s] absence the examination of the case was adjourned until 12 a.m. on 19 April 2000 to find out whether there had been any valid reasons for his absence. At about 4 p.m. on 18 April 2000 [the applicant’s] mother called the court on the phone and said that she and her son had been belatedly advised by her relatives – who had taken the phone call – about the court hearing on 18 April, and that was the reason why her son had not appeared at the court. [The applicant’s] mother also told [the registry] that [the applicant] had no illness preventing him from appearing before the court and no sick-list. During that conversation [the applicant’s] mother was informed that the court hearing was scheduled for 12 a.m. on 19 April 2000.

At the court hearing at 12 a.m. on 19 April 2000 [the applicant] failed to appear once again. the case was rescheduled for 4 p.m. on 19 April 2000. At about 4 p.m. [the applicant’s] mother again called the court on the phone and said that, although she and her son had known about the scheduled court hearing, he would not appear before the court unless the summons was sent by mail. Under these circumstances the court has reasons to believe that [the applicant] is absconding justice, that he refuses to appear before a court and interferes with timely examination of the case. In this connection the court considers it necessary to order retrieval of [the applicant] and amend the measure of restraint to that of placement in custody.”

On 23 April 2000 the applicant was taken into custody.

A lawyer retained by the applicant’s mother asked the Primorskiy District Court to commission an expert examination of the applicant’s mental health and to release him pending trial.

On 10 May 2000 the court held as follows:

“According to the available case-file materials, [the applicant] repeatedly, on three occasions between 18 and 19 April 2000, was summoned to a court hearing and failed to appear without a valid reason. [The applicant] is charged with an offence which is classified as a serious crime, and in such cases a measure of restraint in the form of placement in custody may be imposed for the sole reason of the dangerousness of the committed offence. [The applicant’s] explanation that he did not appear in court because his mother had asked him not to is without substance because [the applicant] is an adult who should have been aware of the consequences of a violation of the undertaking given by him, as well as of the fact that liability for his failure to appear would be his and not his mother’s.”

The court remanded the applicant in custody for an unspecified period of time and ordered a psychiatric examination. It appears that the decision was not appealed against.

On 17 May 2000 the applicant’s mother retained a new lawyer.

3.  Third criminal case and continued pre-trial detention

While the applicant was still in pre-trial detention, on 17 May 2000 an investigator with the Primorskiy District Police Department of St. Petersburg initiated a new criminal case against him (criminal case no. 160556 or no. 1-1421/01) on suspicion of his having stolen certain items from a car in December 1999 having a total value of RUR 4,600 (EUR 170) which act she characterised theft aggravated by repetition, an offence under Article 158 § 2 of the Criminal Code.

On 22 September 2000 Ms M., an investigator with the investigations department of the Primorskiy District Police Department, ordered the applicant’s placement in custody. On the same day the order was approved by a deputy prosecutor of the Primorskiy District. The order does not contain the applicant’s signature in the field provided for his acknowledgment of receipt of a copy thereof or in the field where he was to certify that the procedure for lodging an appeal had been explained to him.

On 25 September 2000 the applicant’s lawyer asked the Primorskiy District Court to vary the legal characterisation of the applicant’s acts in the second criminal case, to prefer a lesser charge of minor theft and to discontinue proceedings on the basis of the amnesty act of 26 May 2000. The District Court granted the lawyer’s request, finding as follows:

“The investigators had characterised Mr Gusev’s acts as a theft committed repeatedly, having regard to the fact that he had already been charged [with theft] on 11 August 1998. However, on 2 February 2000 Mr Gusev was convicted for that act... and, by the appeal decision of 5 July 2000... he was exempted from the punishment. Thus, the acts of Mr Gusev lack the constituent element of repetitiveness.

It has not been shown that Mr Gusev caused substantial damage to the victim P. because he is charged with stealing of a car jack and a pump valued at 200 roubles. It does not appear that the small amount of 200 roubles was important for the victim and there is no information about his income or dependants.”

Having thus established that the aggravating circumstances had ceased to exist or had not been made out, the District Court characterised the applicant’s act as a minor theft (Article 158 § 1 of the Criminal Code) and discontinued the second criminal case against him on the basis of the amnesty act of 26 May 2000. However, the District Court pointed out that the applicant should remain in custody on the basis of the detention order of 22 September 2000.

On 20 and 28 November 2000 the applicant’s lawyer lodged a complaint against the detention order of 22 September 2000. He submitted that the order had been unlawful and unjustified because it had referred to “gravity” rather than “dangerousness” of the offence charged.

On 28 December 2000 the applicant’s lawyer filed a further complaint. He claimed, in particular, that Article 5 § 1 (c) of the Convention did not provide for such a ground for pre-trial detention as the “gravity of the offence” and that the prosecutor’s statements about the applicant’s intention to abscond or obstruct the establishment of the truth were not substantiated. He further pointed out that a copy of the order had not been served on the applicant and the procedure for lodging an appeal had not been explained to him. In any event, the authorised period of his detention had expired on 22 November 2000 and no documents in the case-file indicated that it had been extended. Finally, the applicant’s lawyer pointed to the appalling conditions of the applicant’s pre-trial detention.

On the same date the Primorskiy District Court dismissed the challenge. It found as follows:

“The decision to impose the chosen measure of restraint was read out to [the applicant] on 25 September 2000 at the Primorskiy District Court of St. Petersburg following the pronouncement of the judgment. Likewise, the procedure for lodging an appeal against the detention order was explained to him. However, [the applicant] refused to sign that document, and [the investigator M.], lacking professional experience, omitted to make an appropriate note thereof. At present the periods of preliminary investigation and pre-trial detention of [the applicant] have been extended in accordance with the law.

[The applicant] is charged with a serious crime and its dangerousness alone may be, pursuant to Article 96 of the Code of Criminal Procedure, the ground for... holding him in custody. In these circumstances, dangerousness of the crime to which the law refers is in itself sufficient to anticipate undesirable conduct of the accused, including continuation of criminal activities and absconding upon commission of a crime, in other words, the reference in the law to dangerousness of a crime enables the investigative authorities to anticipate these very events to which the [European] Convention refers.

No information showing that [the applicant] cannot remain in the investigative ward was provided to the court.”

On 3 and 30 January 2001 the applicant’s lawyer appealed against the court decision of 28 December 2000. He indicated, in particular, that the provision of the Code of Criminal Procedure relied upon by the first-instance court, had been struck down as incompatible with the Constitution by the Constitutional Court in the part which provided for placement in custody on the sole ground of dangerousness of an offence.

On 6 February 2001 the St. Petersburg City Court dismissed the appeal as unsubstantiated.

In the meantime, on 16 January 2001 the case against the applicant and his co-defendants was submitted for trial by the Primorskiy District Court. On 24 January 2001 the applicant’s lawyer filed a new request for the applicant’s release pending trial.

On 1 February 2001 the Primorskiy District Court issued a decision to schedule the first trial hearing for 3 May 2001. In the same decision the court dismissed the lawyer’s request for release, stating that the measure of restraint had been imposed “lawfully and reasonably, taking into account the gravity of the charge and the information on his character”. It did not specify for how long the applicant should remain in custody.

The applicant’s lawyer appealed, invoking the same grounds as before.

On 27 March 2001 the St. Petersburg City Court upheld the decision of 1 February 2001.

It appears that the hearing scheduled for 3 May 2001 was adjourned.

On 6 July 2001 the Primorskiy District Court again adjourned the criminal proceedings until 25 September 2001 because counsel for the applicant’s co-defendant failed to appear. It also extended the applicant’s pre-trial detention until 16 October 2001 as, in the court’s opinion, “[his] release would impede a thorough, complete and objective examination of the case”.

The applicant filed an appeal against the decision. He pointed, in particular, to the inhuman and degrading conditions of his detention in facility no. IZ-45/1. He also submitted that he had a permanent residence in St. Petersburg and lived with his disabled mother, five younger brothers and four sisters and that there were no grounds to believe that he would abscond. A supplementary appeal on points of law was filed by his lawyer.

On 4 September 2001 the St. Petersburg City Court dismissed the appeals, finding the extension order had been lawful and justified because “the arguments set out in the appeals had been known to the trial court which [had] had due regard to them”.

On an unspecified date the applicant’s mother filed another request for the applicant’s release pending trial.

On 26 September 2001 the Primorskiy District Court examined the request and, upon finding that the maximum detention period of nine months would expire in October 2001, ordered the applicant’s release against a written undertaking not to leave the town.

By judgment of 10 July 2003, the Primorskiy District Court convicted the applicant of aggravated theft and sentenced him to four years’ imprisonment conditional on two years’ probation. The applicant was relieved from the punishment by virtue of the amnesty act of 26 May 2000.

The applicant did not appeal against the conviction.

C.  The applicant’s detention in remand centre IZ 45/1 “Kresty”

1.  Alleged ill-treatment at the remand centre

Following his arrest on 23 April 2000, the applicant was transferred on 24 April 2000 from the temporary confinement ward on Savvushkina Street to the pre-trial remand centre IZ 45/1 “Kresty” (ИЗ 45/1 «Кресты»). He was placed first in the so-called “tight cell” (stakan), which was a cell with stone walls and concrete floor without beds or chairs, and then in cell no. 430.

On 29 April 2000 the applicant’s mother paid him a visit. She allegedly saw a bruise under his left eye and he told her that a personal friend of Mr K., the operational officer Mr D. who served at the centre, had ill-treated and beaten him and had also told “hardened criminals” to “tame” him.

On the same day the applicant’s mother complained to the Primorskiy District prosecutor. The complaint was assigned to the deputy prosecutor who came to police station no. 44 and interviewed the officers present. They denied having done any wrongs to the applicant.

On 6 May 2000 the applicant’s mother visited him again. His lip was allegedly broken and swollen on the left side. To her question, the applicant replied that on 4 May 2000 officers from station no. 44 and the officer D. had humiliated, ill-treated and strangled him. D. had allegedly made him sign a paper stating that he was a homosexual.

On 11 May 2000 (the document erroneously indicates the year as 1990) Senior Lieutenant D., the operational officer of investigations’ ward no. 1, drew up a report on the applicant’s confession to participation in six thefts. The report bears the applicant’s signature preceded by the following statement: “My words have been recorded correctly and I have read [the report]”.

In his complaint of 28 February 2001 to the Prosecutor General of the Russian Federation, the applicant wrote that on the day of his arrival at the centre he had been beaten and sexually harassed by two of his cell-mates in cell 430 and also he had been forced to write a paper indicating his wish to co-operate with the investigation and give self-incriminating statements. On 4 May 2000 he had been brought to the office of the officer D. where Lieutenant I. from police station no. 44 and another “short and stoutish” officer had been present. He had been beaten with a truncheon and punched with a boxing glove in his stomach and face. Thereafter D. had brought two plastic transparent bags and the “stoutish” officer had begun to strangle him while D. had been holding his hands behind his back. As a consequence of ill-treatment, the applicant had been scared and had written a confession by his hand. On 11 May 2000 he had been brought again to D.’s office where the “stoutish” officer had copied his confession on the official letterhead and made the applicant sign it.

2.  Conditions of the applicant’s detention in the remand centre

The applicant was held in cell no. 430 until 1 May 2000, then in cell no. 106 until 9 August 2000 and in cell no. 79 after that date. In his submission, each cell measured 6 to 8 sq. m and accommodated 10 to 13 persons simultaneously. Part of each cell was occupied by a table, toilet bowl and bed, so that the living space was 0.2 to 0.4 sq. m per inmate. The Government indicated the floor space of each cell as 8 sq. m and asserted that the number of detainees detained in each cell was impossible to establish as the relevant documents had been destroyed.

The applicant indicated that he had never had a separate bed. In cell no. 430 he had shared the bed on the third tier with two other inmates. In cell no. 106 he had not been allowed by the informal “chief” of the cell to sleep on a bed, he had slept on the floor or under the bed. In cell no. 79 he had shared the bed on the third tier with another inmate. No bedding had been provided by the facility, until 9 May 2000 he had slept on wooden planks and covered himself with his clothing.

The applicant submitted that the windows in all cells had bars and iron blinds on them and did not allow natural light or air into the cell. The blinds completely covered the window and it was forbidden to put them off. The Government pointed out that the cells had been “naturally ventilated” through the holes in the walls. The applicant denied that, indicating that ventilation holes in the walls had been patched with concrete.

The Government stated that the cells had been equipped with sanitary installations separated from the living space by a folding screen. The applicant submitted that the folding screen had not existed and that it had been prohibited to separate the cell from the toilet bowl located about fifty centimetres from the table.

COMPLAINTS

1.  The applicant complained under Articles 2 and 3 of the Convention that –

(a)  he had been ill-treated at the police station on 13 May 1998;

(b)  he had been ill-treated by the police officers on 15 April 2000;

(c)  he had been ill-treated by his cellmates and police officers in remand centre no. IZ-45/1; and

(d)  the conditions of detention in the remand centre had been inhuman and degrading.

2.  The applicant complained under Article 5 of the Convention that –

(a) he was not given a copy of the detention order of 22 September 2000; and

(b) his pre-trial detention was unlawful, unjustified and unreasonably long.

THE LAW

1.  The applicant alleged that he had been a victim of ill-treatment on several occasions and also suffered from inhuman conditions of detention. He invoked Articles 2 and 3 of the Convention. Since the applicant’s life does not appear to be, or to have been, imperilled, the Court considers that Article 2 finds no application in the present case. It will examine the complaints from the standpoint of Article 3 of the Convention which provides as follows:

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

(a)  The applicant complained that he had been ill-treated by Mr K. in the premises of police station no. 44, on 13 May 1998.

The Government submitted that, in his statement of 27 May 1998, the applicant had denied that Mr K. had exercised physical pressure on him. In their handwritten statements, the police officers had denied any use of violence against the applicant. On the other hand, they had reported that his mother’s behaviour had been rude, that they had tried to reason with her but she had refused to listen, shouted and threatened with complaints. However, in her statement of 27 May 1998, she had accepted that the police officers had acted lawfully and that she had no complains concerning Mr K. The allegations of ill-treatment which the applicant’s mother had complained about, had been examined by the prosecutors who had found them unsubstantiated.

The applicant replied that the burden of proof was on the respondent Government to provide a plausible account of the injuries he had sustained. His detention at the police station had not been recorded and he had been interviewed outside the normal procedure for examination of witnesses or suspects, in the absence of his parents or counsel. The statements of 27 May 1998 are unreliable evidence. They were drafted in an elaborate official language which could not be attributable to him in view of his young age, mental capacity and low level of education. He could not possibly have given such statements voluntarily or with the requisite understanding of the implications of making such explanations. In fact, the prosecutor’s inquiry only relied on the statements by the persons implicated in the alleged ill-treatment, such as Mr K., despite his previous conviction for similar crimes of sexual nature against minors. The findings of the inquiry were not notified to the applicant, depriving him of an opportunity to challenge them.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt”, but has added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

Turning to the particular circumstances of the case, the Court observes that the details of the ill-treatment to which the applicant was allegedly subjected can only be gleaned from his mother’s complaint which was written three years after the events in question, in June 2001. It appears that the applicant himself never complained about the alleged ill-treatment to any domestic authority and, when interviewed by officials, denied that it had occurred. There is no medical evidence of ill-treatment, such as a medical certificate, or any testimony by an independent witness.

It follows that the material in the case-file does not lay down an evidentiary basis sufficient to enable the Court to find “beyond reasonable doubt” that the applicant was subjected to the alleged ill-treatment on 13 May 1998. It remains therefore to be seen whether the Government have discharged their duty to carry out an adequate and effective investigation of his allegations of ill-treatment.

In this connection, the Court reiterates that Article 3 only requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3290, § 101-2).

Having regard to the above observations, the Court considers that at the material time the applicant did not put forward an arguable claim that he was ill-treated by the police. Neither the applicant nor his mother submitted at that time a detailed account of events or asked for a medical examination. In these circumstances, he could not legitimately claim that an in-depth investigation should have been carried out, without him or his mother having furnished to the authorities a more reliable starting point for their inquiries (see D.E. v. Bulgaria (dec.), no. 44625/98, 1 July 2004; and Işik v. Turkey (dec.), no. 35064/97, 2 September 2003).

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

(b)  The applicant complained that he had been ill-treated by Mr K. and the police officer I. who had arrested him on 15 April 2000.

The Government denied that the applicant had been ill-treated during his arrest on 15 April 2000. They referred to his hand-written statement of 11 May 2000, in which he had admitted that he had been detained lawfully. He had also indicated that he had had no complaints about the conduct of the police officers and that he had not asked his mother to complain on his behalf. In his statement of 4 May 2000, the police officer I. had also denied exercising physical or mental pressure on the applicant. The prosecutors had carried out an inquiry and found the allegations unsubstantiated.

The applicant reiterated that the burden of proof was on the Government to provide a plausible explanation of his injuries. The date on his statement of 11 May 2000 had been apparently corrected and, moreover, it had been written while he had been in custody, that is under the control of the authorities and in a vulnerable position. The statement by a directly implicated police officer could not be considered a reliable source of information. The scope of the prosecutor’s inquiry had been insufficient.

The Court notes that there is no evidence in the case-file showing that the applicant suffered any ill-treatment on or about 15 April 2000. He omitted to describe what the injuries had been, or when and by whom they had allegedly been inflicted. It follows that the allegation of ill-treatment has not been made out. Moreover, it does not appear that the complaints by the applicant’s mother amounted to an arguable allegation sufficient to trigger the domestic authorities’ obligation to investigate the alleged ill-treatment.

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

(c)  The applicant complained that he had been ill-treated in the remand centre, first by his cellmates and then by the police officers.

The Government submitted that the applicant himself had never complained himself about ill-treatment in the remand centre. Statements were taken from the applicant’s cellmates who testified that no “conflict situations” had occurred in the cell. The officers of the Primorskiy District police station also denied any violence used against the applicant. The allegations of ill-treatment had been examined by the prosecutors who had found that no physical or mental pressure had been put on the applicant.

The applicant claimed that accuracy of the statements by his cellmates was open to doubt. The authorities did not establish the identities of his co-detainees and could not confirm that those people had been indeed detained with the applicant. On 4 May 2000 the police officers had conducted a “conversation” with him in excess of their official powers. The scope of the prosecutors’ inquiry had been insufficient, they had failed to collect evidence independent of the persons implicated in the alleged ill-treatment.

The Court notes that the applicant’s allegations of ill-treatment in the remand centre are not corroborated with any evidence capable of satisfying the standard of proof “beyond reasonable doubt”. The statements by him and by his mother find no support in medical certificates or testimony by independent witnesses. The prison registers contain no traces of his complaints about the alleged ill-treatment or of any request for medical assistance or examination. At the material time he did not file any complaint with the prison authorities and the first application to a prosecutor only appeared in February 2001, that is more than nine months after the events. Although the applicant denied that the persons who had given the statements, had been his cellmates, he never indicated the names or at least distinctive features of his actual cellmates. In the absence of any reliable information from the applicant, it cannot be said that the scope of the prosecutor’s inquiry had been insufficient.

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

(d)  The applicant complained that the conditions of detention at the remand centre had been inhuman and degrading.

The Government conceded that at the material time the remand centre had been overcrowded owing to “objective causes”, such as lack of financial resources and high level of crime. The cells in which the applicant had been held, had glass in the window panes, natural ventilation through the holes in the walls and running water. On 11 June 2001 the temperature in the cell had been +20.5 degrees Celsius. The applicant had not complained about the quality of food and he had received food parcels from outside. The Government maintained that the conditions of detention had been generally compatible with the applicable sanitary norms.

The applicant contested the accuracy of the Government’s factual submissions. He maintained that the cells had been severely overcrowded, he had not had a separate bed, there had been no ventilation and no privacy during the use of sanitary facilities. Referring to the Court’s case-law, he submitted that the cumulative effects of overcrowding, absence of ventilation, excessive temperatures and lack of privacy had manifestly exceeded the minimum “level of severity” under Article 3 of the Convention.

The Court considers, in the light of the parties’ submissions, 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 therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant further complained under Article 5 of the Convention that a copy of the detention order of 22 September 2000 had not been properly served on him and that his detention had been unlawful and unreasonably long. The relevant parts of Article 5 read as follows:

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

...

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

...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

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...”

(a)  The applicant complained that he had not been properly notified of the detention order of 22 September 2000.

The Government submitted that on 22 September 2000 the investigator had ordered the applicant’s detention in the framework of criminal case no. 160556. The applicant had been notified of that arrest warrant at the hearing in the Primorskiy District Court on 25 September 2000 but he had refused to sign the warrant in proof of his notification of that decision.

The applicant did not contest that the information about the reasons of his arrest had indeed been given to him. However, he contended that the notification of an arrest warrant three days after it had been issued could not be considered as “prompt” with the meaning of Article 5 § 2 of the Convention.

The Court observes that on 25 September 2000 the criminal proceedings against the applicant in case no. 1-2415\00 (“second criminal case”) were discontinued. Until that date the applicant had been held in custody on the basis of the judicial decisions of 19 April and 10 May 2000 ordering the applicant’s arrest and detention in the framework of the second criminal case. On 25 September 2000 the legal basis of the applicant’s detention shifted because his detention had been previously ordered in the framework of case no. 160556 (“third criminal case”). The applicant acknowledged that he had been informed of that change of legal basis on the same day. In fact, he had been told about the reasons for his “re-arrest” and the charges levelled against him in the third criminal case immediately after the hearing in the second criminal case. The Court considers that that notification was undoubtedly “prompt” in the meaning of Article 5 § 2 of the Convention.

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

(b)  The applicant finally complained that his detention had been unlawful, unjustified and unreasonably long.

The Government submitted that the applicant’s detention had been lawful. The amnesty act of 26 May 2000 had not been applicable to him because the prosecution had initially charged him with a serious crime. After the District Court had preferred a lesser charge further to his representative’s request, on 25 September 2000 the second criminal case had been discontinued. The applicant, however, had remained in custody pursuant to the arrest warrant of 22 September 2000 issued in the third criminal case. Again, the amnesty act had not been applicable to him because of the gravity of the charge.

As regards the length of the applicant’s detention, the Government pointed out that the domestic time-limits had been respected. The courts ordered his holding in custody having regard to the gravity of the charges against him and the existence of a risk of absconding. Some delays were justified by the reasons of absence of the applicant’s representative (his mother), counsel for his co-defendants, and illness of the judge.

The applicant replied that the amnesty act had only been applied on the day when the charge had been re-characterised as a lesser one. However, the factual basis of the charge had remained the same as it had been on the date of entry into force of the amnesty act. It followed that the authorities had been aware of the minor character of the imputed offence on that date. Referring to the Court’s findings in the case of Gusinskiy v. Russia (no. 70276/01, § 68, ECHR 2004-IV), the applicant claimed that his detention after that date had been unlawful.

The applicant further submitted that his detention for eighteen months had been unreasonably long with regard to the minor charges (small theft) brought against him. He could not be held responsible for the delays occasioned by absence of counsel for his co-defendants or illness of the judge. The absence of his mother had not been a material factor because he had always been represented by a lawyer.

The Court considers, in the light of the parties’ submissions, 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 therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the conditions of his detention in remand centre no. IZ-45/1, and the lawfulness and length of his pre-trial detention;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

GUSEV v. RUSSIA DECISION


GUSEV v. RUSSIA DECISION