FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6954/02 
by Aleksey Aleksandrovich MALTABAR and Anton Aleksandrovich MALTABAR 
against Russia

The European Court of Human Rights (First Section), sitting on 28 June 2007 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mr A. Kovler
 Mr K. Hajiyev
 Mr D. Spielmann
 Mr S.E. Jebens, 
 Mr G. Malinverni, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 30 December 2001,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Aleksey Aleksandrovich Maltabar and Mr Anton Aleksandrovich Maltabar, are Russian nationals who were born in 1969 and live in the town of Tver. They were represented before the Court by Mrs Natalya S. Maltabar, a lawyer practising in Tver. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

1.  Criminal proceedings against the applicants

On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud. The applicants alleged that until 27 October 2000 they had been interviewed as witnesses in the case and that they had been unable to cross-examine witnesses during the preliminary phase of the proceedings.

According to the applicants, various domestic rules had been breached: for instance, the time-limits in respect of interim decisions had not been complied with and there had been irregularities in the opening of the criminal case. Furthermore, the authorities had failed to apply the amnesty law in their case and had discriminated against them on account of their Greek ethnic background.

On 17 April 2001 the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large-scale fraud. Both applicants were also tried on a charge of forgery. On the latter charge, the court acquitted the first applicant and found the second applicant guilty. They were sentenced to three years and six months and four years and six months’ imprisonment respectively. It appears that both applicants denied their involvement in the crimes. The conviction was based principally on oral and written evidence given to the court by at least six witnesses and also on several pieces of documentary and other evidence.

The applicants appealed against the judgment. This appeal was examined and dismissed by the Tver Regional Court on 3 July 2001. The court refuted the applicants’ arguments, finding that there had been no significant breaches of domestic procedure and that the lower court had made a correct assessment of the circumstances of the case.

On 18 December 2002 the Deputy President of the Supreme Court of Russia applied for supervisory review of the judgment of 17 April 2001, requesting a milder sentence.

By decision of 20 January 2003 the Supreme Court examined and allowed the arguments set out in the special appeal. It reduced the applicants’ sentences to two years and two years and six months’ imprisonment respectively and ordered that the first applicant be released accordingly.

By decision of 11 March 2003 the Torzhokskiy Town Court released the second applicant on parole before the expiry of his prison sentence.

2.  Conditions of the applicants’ detention

On 15 December 2000 the applicants were arrested and placed in detention.

(a)  The first applicant’s detention

The first applicant alleged that between 11 a.m. on 15 December and 3 a.m. on 16 December 2000 he had been held first in a local police station and then in a temporary detention centre (“ИВС”). According to the applicant, he was refused food and an opportunity to sleep. He was then escorted to pre-trial detention centre IZ-69/1 in the town of Tver, where he remained until 24 July 2001.

According to the first applicant, between 16 December and 19 December 2000 he had been detained in cell no. 42. On 20 December 2000 he was transferred to cell no. 60 for detainees infected with open tuberculosis. Between 30 December 2000 and 23 January 2001 he was held in cell no. 42. From 23 January 2001 to 11 March 2001 he was detained in cell no. 54. For eleven days between 11 March and 22 March 2001 he was detained in a punishment cell. On 22 March 2001 he was transferred back to cell no. 54 and remained there until 17 April 2001. Between 17 April and 24 July 2001 he was detained in cell no. 23.

The Government submitted that the first applicant had been placed in IZ-69/1 on 15 rather than 16 December 2000 as he alleged. They further submitted that the dates of detention in various cells in IZ-69/1 given by the first applicant were erroneous. The first applicant had been placed in cell no. 42 on 15 December and had remained there for only one day. He was then transferred to cell no. 60, where he stayed until 19 December 2000. Between 20 December and 24 December 2000 the first applicant was detained in cell no. 42. He was transferred to cell no. 54 on 25 December 2000 and remained there until 22 January 2001. Between 23 January and 10 March 2001 the first applicant was held in cell no. 120. From 11 to 18 March 2001 he was held in cell no. 54. On 19 March 2001 the first applicant was transferred to cell no. 23. He remained there until his departure from IZ-69/1.

(i)  Conditions of detention in cell no. 42

According to the first applicant, the cell measured 24 square metres, had nineteen trunk beds and was occupied by between 45 and 50 detainees at all times during his stay there.

According to the Government, the cell measured 31.9 square metres, had eight trunk beds and was lit by four 80-watt daylight lamps. There were seven inmates in the cell on 16 December 2000. The cell had both natural and mechanised ventilation systems.

(ii)  Conditions of detention in cell no. 60

According to the first applicant, he had been transferred on 20 December 2000 to cell no. 60, which was reserved for detainees infected with open tuberculosis. It measured 16 square meters, with six beds, and had held between twelve and fourteen infected detainees at the time of the applicant’s detention. It had a constantly high level of humidity as it was situated right above the prison baths. Also, every other night the only toilet in the cell was decontaminated with half a bucket of chlorine-based reagent. Since the toilet flush was inactive during the night, the chlorine-based reagent combined with the humidity and urine caused corrosive damage to detainees’ lungs and eyes. According to the applicant, this greatly increased the risk of contamination. He submitted that there had been no medical or any other reason justifying his transfer to this cell by the prison authorities. He referred in that respect to the results of a medical examination of 16 December 2000. It further appears that the first applicant was forced to undergo a medical examination and treatment in this respect, which included several blood tests and x-rays.

According to the Government, the cell in question measured 22.4 square metres, had both mechanised and natural ventilation systems and five sleeping places and was illuminated by four 80-watt daylight lamps. There had been three inmates in the cell on 20 December 2000.

(iii)  Conditions of detention in cell no. 42

According to the Government, on 25 December 2000, the date of the first applicant’s departure from cell no. 42, there had been eight inmates in the cell.

(iv)  Conditions of detention in cell no. 54

According to the first applicant, cell no. 54 measured 16 square metres, had nine beds and housed between ten and twelve detainees.

The Government submitted that the cell in question measured 27.6 square metres and had seven sleeping places. It had a system of natural and mechanised ventilation and was lit by four 40-watt daylight lamps. On 23 January 2001 there had been seven inmates in the cell.

(v)  Conditions of detention in punishment cell

The first applicant submitted that the punishment cell measured four square metres, with only one sleeping place and eleven inmates. The applicant submitted that he had not been given any reason for his being placed there and further alleged that there was no toilet in the cell and that detainees used a bucket which was emptied once a day but was never washed or decontaminated.

The Government submitted that between 23 January and 10 March 2001 the first applicant had been held in cell no. 120. This cell measured 8.8 square metres, had two sleeping places and both natural and mechanised ventilation, and was illuminated by one 150-watt bulb. On 11 March 2001 there had been two inmates in the cell.

(vi)  Conditions of detention in cell no. 54

The Government submitted that on 19 March 2001, the date of the first applicant’s departure from cell no. 54, there had been six inmates in the cell.

(vii)  Conditions of detention in cell no. 23

The applicant submitted that between 17 April 2001 and 24 July 2001 he had been detained in cell no. 23, which measured 30 square metres. It had twenty-five sleeping places and housed between eighty and ninety detainees.

The Government submitted that cell no. 23 measured 45.3 square metres and had eleven sleeping places. It had a system of mechanised and natural ventilation and was lit by means of four 40-watt daylight lamps. There had been eleven inmates in the cell on 17 April 2001.

(b)  The second applicant’s detention

According to the second applicant, between 11 a.m. on 15 December and 2 a.m. on 16 December 2000 he had been held first in the local police station and then in the temporary detention centre without food or sleep. He was then escorted to pre-trial detention centre IZ-69/1 in the town of Tver and placed in cell no. 102. Between 16 December 2000 and 17 April 2001 he was detained consecutively in cells nos. 102 and 84. During the period between 17 April and 30 July 2001 he was held in cell no. 21. For fourteen days in May 2001 the second applicant was detained in the punishment cell, which measured around four square metres, had one bed and was occupied by twelve detainees. It appears that the second applicant was detained in cell no. 117.

The Government submitted that the dates of detention submitted by the second applicant were inaccurate. On 15 December 2000 the second applicant had been detained in cell no. 102. Between 16 and 27 December 2000 he was placed in cell no. 84. On 28 December 2000 he was transferred to cell no. 21. As of 17 April 2001 the second applicant was transferred to cell no. 117.

(i)  Conditions of detention in cells nos. 102 and 84

The second applicant submitted that between 16 December 2000 and 17 April 2001 he had been detained consecutively in cells nos. 102 and 84. These measured 7.5 square metres, had four trunk beds and housed more than six detainees.

The Government submitted that cell no. 102 measured 9 square metres and had two sleeping places. Cell no. 84 measured 9.8 square metres and had two trunk beds. Both cells had natural and mechanised ventilation and were illuminated by two 40-watt daylight lamps. On 16 December 2000 there had been two inmates in cell no. 102. On 28 December 2000 there had been two inmates in cell no. 84.

(ii)  Conditions of detention in cell no. 21

The second applicant submitted that cell no. 21 measured 17 square metres, had twelve sleeping places and was occupied by more than 43 inmates.

The Government submitted that the same cell measured 20.7 square metres, had five sleeping places and mechanised and natural ventilation systems, and was illuminated by means of two 150-watt bulbs. On 17 April 2001 it had housed four inmates. On 24 May 2001 there had been four inmates in the cell.

(iii)  Conditions of detention in the punishment cell

According to the second applicant, for fourteen days in May 2001 he had been detained in a punishment cell measuring approximately four square metres, with one bed and twelve detainees.

It appears that the second applicant was detained in cell no. 117.

According to the Government, the second applicant had been detained in cell no. 117 between 17 April and 16 May 2001. The cell measured 8.2 square metres, had two sleeping places and on 17 May 2001 had contained two inmates.

(iv)  Conditions of detention in cell no. 21

The Government submitted that from 17 May 2001 until the date of the second applicant’s departure from the detention centre, he had remained in cell no. 21. It appears that the second applicant remained in detention until 31 July 2001.

(c)  General remarks by both applicants concerning the conditions of detention and transportation and the detention centre regime

(i)  Daily walks

The applicants submitted that they had taken walks in the detention centre courtyard every day. The walks had lasted between ten minutes and one hour depending on the guards’ mood. The courtyard was exposed to the elements and had no roof and in bad weather the walks usually lasted no less than an hour.

The Government did not comment on these allegations.

(ii)  Shower

According to the applicants, detainees could not take a shower more than twice or three times a month and the water in the shower was barely warm.

The Government submitted that the applicants had been allowed to take a shower once a week for at least 15 minutes.

(iii)  Ventilation

The applicants also submitted that all the cells described lacked proper ventilation systems and were very hot in summer and cold in winter.

According to the Government, all the cells referred to above had both mechanised and natural ventilation systems. The windows in all of the applicants’ cells were glazed and had a window leaf for ventilation. Furthermore, the heating system in the prison was fully functional and the temperature in the cells was within the permissible range (+20C in winter and +24o C in summer).

(iv)  Sanitary conditions

According to the applicants, all the cells were infected with lice, flies and bugs, none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen, blankets or crockery. They submitted three photographs of a cell in the detention centre in question. None of the beds in the photographs had any bed linen on them.

The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress, a pillow with two pillowcases, two blankets, two sheets and three towels. In addition, they were given a mug, a spoon and a bowl. The bed linen was changed once a week after the inmates had taken a shower. There was a brick wall 1.20 metres high separating the toilet area from the living area in all the cells. The authorities submitted the layouts of all the cells with measurements. They further submitted that during the relevant period they had carried out disinfection works, including fumigating and disinfesting each cell twice a month.

(v)  Catering

The applicants alleged that the catering had been extremely poor.

The Government submitted that inmates were given food three times a day, in accordance with the relevant norms.

(vi)  Alleged overcrowding of cells

The applicants further submitted that all the cells had been heavily overpopulated and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turns to sleep and with their lunchtime, so that they were effectively deprived of sleep and food. The detainees had to sleep in turns and had no way of washing themselves or getting shaved.

The Government submitted that the cells in question had not been overcrowded.

(vii)  Conditions of transport

The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning, at around 5 a.m., and were not brought back until 8.30 or 9 p.m. While they were being moved, the applicants were kept either in a small space measuring 0.5 m x 0.65 m along with another detainee, or in a bigger space measuring 2 m x 0.65 m containing between seven and twelve detainees. No warm food or toilet facilities were provided during transport or in the confinement cells of the court. While waiting for a hearing, between court sessions or while waiting for other detainees after the hearing, each of the applicants had been kept for hours in a small unventilated cell in the courthouse measuring approximately 1.5 m x 1.5 m, together with up to two other prisoners.

The Government did not comment on these allegations. They submitted that the inmates had breakfast before going to court, were returned to the detention centre for lunch and had dinner after the court sessions.

(d)  Alleged episode of ill-treatment

The first applicant alleged that on one occasion during his detention in cell no. 42 the detainees had been used by the special security forces as training dummies and he had been severely beaten. He did not submit any proof of resulting injuries. No complaints appear to have been made in this respect by any of the alleged victims.

(e)  Personal searches and family visits

Finally, the applicants submitted that the detention centre authorities had regularly conducted personal searches in the cells and that the applicants had been unable to see their families before delivery of the first-instance judgment in their case, as the investigator had refused their family members permission to visit, referring to “the applicants’ failure to confess”. They did not submit any proof that such requests had been made and refused.

(f)  The first applicant’s supposed infection with tuberculosis

On 19 December 2000 the prison doctor examined the first applicant and decided that he could be suffering from an early form of tuberculosis. The next day medical treatment started and on 22 December 2000 a further examination was carried out. On 25 December 2000 the doctor concluded that the first applicant did not have tuberculosis. On 24 July 2001 the first applicant was transferred to a different detention centre.

Subsequent examinations on 1 March, 26 July, 16 October 2001, 23 April and 15 October 2002 revealed that the first applicant did not show signs of the disease.

(g)  Statements by various officials and human rights NGO reports

The applicants referred to reports on human rights in Russia dated 1999, 2000 and 2001 written by the Moscow Helsinki Group NGO. A 2000 report on the events of 1999 stated that the situation in pre-trial detention centres in Russia was very bad overall, as the detention centres contained four times more detainees than there were places available (2,765 detainees and 680 places). The 2001 report on the events of 2000 mentioned the Tver Region as being affected by the issue of overcrowded pre-trial detention centres and complaints about deficient catering. The 2002 report on the events of 2001 referred to dozens of former inmates who spoke of arbitrariness and “lawlessness” in the detention centre in question.

According to the applicant, the newspaper “Nezavisimaya gazeta” published an interview given by a number of officials, including Minister of Justice Yu. Chayka, his deputy Yu. Kalinin and the head of the Department of Execution of Penalties of the Ministry of Justice, during a press conference in the Butyrskaya pre-trial detention centre. The applicant claimed that they had admitted that the numbers of inmates in Russian SIZOs and prisons exceeded capacity by 52.2%, the most difficult situation being in the cities of Moscow and St Petersburg, the towns of Tver and Tula and the republic of Chuvashiya.

B.  Relevant domestic law and practice

1.  Rules on the detention regime in pre-trial detention centres (as approved by Decree No. 148 of the Ministry of Justice of 12 May 2000)

Section 42 of the Rules provided that all inmates, whether suspects or defendants, had to be given, among other things: a sleeping place; bedding consisting of one mattress, one pillow and one blanket; bed linen consisting of two sheets and a pillowcase; a towel; crockery and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).

Section 44 stated that cells in pre-trial detention centres must be equipped, among other things, with a table and benches with enough seating for the number of inmates, sanitation facilities, tap water, daylight lamps and night-time illumination.

Section 46 provided that prisoners were to receive food three times a day, with warm meals provided in accordance with the norms laid down by the Government of Russia.

Under Section 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after they had taken a shower.

Section 143 provided that an inmate could receive visits from his lawyer, family members or other persons, subject to written permission from an investigator or an investigative body, the number of visits being limited to two per month.

2.  Order No. 7 of the Federal Service for the Execution of Sentences dated 31 January 2005

Order No. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overpopulation in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions pre-trial detention centre IZ-69/1 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,160 inmates and in reality housed 1,587 detainees, in other words, 36.8% more than the permitted number.

C.  Relevant Council of Europe documents

The relevant extracts from the General Reports of the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:

Extracts from the 2nd General Report [CPT/Inf (92) 3]

“46.  Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.

47.  A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...

48.  Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...

49.  Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...

50.  The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.

51.  It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...”

Extracts from the 7th General Report [CPT/Inf (97) 10]

“13.  As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.

The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”

Extracts from the 11th General Report [CPT/Inf (2001) 16]

“28.  The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...

29.  In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.

30.  The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”

COMPLAINTS

1.   The applicants complained under Article 3 of the Convention that the conditions of their detention had been inhuman and degrading.

2.  The applicants also complained under this Convention provision of the lack of family visits prior to delivery of the first-instance judgment in their case, as the investigator had allegedly refused their family members permission to visit, referring to “the applicants’ failure to confess”. The first applicant also complained that he had been beaten by the special security forces. He relied on Article 3 in this respect.

3.  The applicants also complained that their detention pending trial had been in breach of Article 5 of the Convention.

4.  The applicants complained under Article 6 of the Convention of their alleged inability to cross-examine witnesses at the preliminary stage of the proceedings and the fact that until 27 October 2000 they had been interviewed as witnesses. They also alleged that there had been breaches of various domestic rules: for instance, the time-limits in respect of interim decisions had not been complied with and there had been irregularities in the opening of the criminal case. They further submitted that the appalling conditions of their detention had left them unfit to participate effectively in the criminal proceedings against them.

5.  Finally, the applicants complained of the authorities’ alleged failure to apply an amnesty law in their case and of alleged discrimination on account of their Greek ethnic background.

THE LAW

1.  Relying on Article 3 of the Convention, the applicants complained of the appalling conditions of their detention pending trial. Article 3 provides as follows:

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

A.  The parties’ submissions

The Government submitted that the applicants’ conditions of detention had been satisfactory and that in any event the applicants had failed to lodge any complaints with the competent domestic authorities in this respect.

The applicants disagreed and maintained their initial position. They referred to human rights reports for 1999, 2000 and 2001 written by the Moscow Helsinki Group, to the order of the Federal Service of Execution of Sentences and to statements made by various officials which, in their view, confirmed their allegations. They also argued that the data and figures provided by the Government were erroneous and that a new prison block had been built on 1 July 2004 and had been taken into account in the Government’s figures.

B.  The Court’s assessment

Inasmuch as the Government may be understood to claim that the applicants have not complied with the rule of exhaustion of domestic remedies, the Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI).

The Court observes that the Government merely noted that the applicants had not lodged any complaints concerning the conditions of detention in pre-trial detention centre IZ-69/1 with the domestic authorities. The Government neither specified what type of petition would have been an effective remedy in their view, nor did they provide any further information as to how such a petition could have prevented the alleged violation or its continuation or provided the applicants with adequate redress. In the absence of such evidence and having regard to the above-mentioned principles, the Court finds that, inasmuch as the Government may be understood to raise the plea of non-exhaustion, they did not substantiate their claim that the remedy the applicants had allegedly failed to exhaust was an effective one (see, among other authorities, Kranz v. Poland, no. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), no. 42096/98, 4 March 2003).

For the above reasons, the Court finds that the complaint cannot be rejected for non-exhaustion of domestic remedies (see also Popov v. Russia, no. 26853/04, §§ 204-06, 13 July 2006; Mamedova v. Russia, no. 7064/05, §§ 55-58, 1 June 2006; and Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI (extracts)).

In the light of the parties’ submissions, the Court finds that this part of the application 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 it inadmissible have been established.

2.  Under Article 3 of the Convention the applicants also complained about the authorities’ alleged refusal to allow family visits prior to the delivery of the first-instance judgment in their case. The first applicant also alleged ill-treatment by the special security forces.

The Court notes that the applicants failed to submit any proof that requests for family visits had been made and that the authorities had turned them down. As regards the allegations of ill-treatment of the first applicant, he also did not submit evidence of any resulting injuries. It does not appear that any complaints were made in this respect by either the applicant or any of the alleged victims.

In these circumstances, the Court finds that the applicants failed to substantiate their complaints. Accordingly, it 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.

3.  Under Article 5 of the Convention the applicants also complained of various aspects of their detention pending trial. This provision, 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.”

The Court considers that the date of the “final decision” for the purpose of Article 35 § 1 of the Convention in connection with a period of pre-trial detention is the date on which the charge is determined by a court at first instance, not the date on which a conviction becomes effective (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). The applicants were convicted at first instance on 17 April 2001 and, consequently, the six-month time-limit under Article 35 § 1 concerning this part of the application started running on that date. However, the application was not introduced until 30 December 2001, which is more than six months later. The Court therefore finds that the applicants failed to comply with the six-month time-limit laid down in Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

4.  The applicants complained under Article 6 of the Convention of the outcome of the proceedings in their criminal case. In particular, they were dissatisfied with their alleged inability to cross-examine witnesses during the preliminary stage of the proceedings and the fact that until 27 October 2000 they had been interviewed as witnesses. They also complained of alleged breaches of various domestic rules: for instance, the time-limits in respect of interim decisions had not been complied with and there had been irregularities in the opening of the criminal case. In addition, they complained that the appalling conditions of their detention had adversely affected their ability to participate effectively in the criminal proceedings against them. Finally, the applicants complained of the authorities’ alleged failure to apply an amnesty law in their case and of alleged discrimination on account of their Greek ethnic background.

As regards the applicants’ complaints that the allegedly inadequate conditions of their detention undermined their ability effectively to participate in the criminal proceedings in their case, the Court recalls that it has previously ruled that where a person is detained pending trial, the word “facilities” in Article 6 § 3 (b) may extend to conditions of detention that permit the person to read and write with a reasonable degree of concentration (see, for example, Mayzit v. Russia, no. 63378/00, §§ 77-85, 20 January 2005). Nevertheless, even on the assumption that the applicants’ account of events is accurate, the Court notes that during their detention the applicants were able to lodge a number of complaints and applications which contained numerous references to laws. It is hence impossible to conclude that the conditions of the applicants’ detention were so bad as to make preparation for the trial wholly impossible. In such circumstances, the Court is unable to conclude that the rights of the defence were limited or curtailed in this respect.

Insofar as the applicants complain of the outcome of the criminal proceedings against them and of various breaches of domestic procedural and substantive law, the Court notes 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 applicants, the Court notes that the latter, personally and through their defence counsel, were fully able to present their case and contest the evidence that they considered false. Having regard to the facts as submitted by the applicants 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.

In view of the above, 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.

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 applicants’ complaint concerning the conditions of their detention;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

MALTABAR AND MALTABAR v. RUSSIA DECISION


MALTABAR AND MALTABAR v. RUSSIA DECISION