AS TO THE ADMISSIBILITY OF
Application no. 75386/01
by Pavel Aleksandrovich KSENZOV
The European Court of Human Rights (First Section),
27 January 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 7 July 2001,
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 applicant, Mr Pavel Aleksandrovich Ksenzov, is a Russian national, who was born in 1980 and lives in Rostov-on-Don. He is represented before the Court by Mr Krakovskiy, a lawyer practicing in Rostov-on-Don. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Alleged ill-treatment
On 9 February 2000 the applicant was arrested on suspicion of having murdered two minors and was brought to the Pervomaiskiy District police station in Rostov-on-Don.
According to the applicant, in the police station he was beaten up. In particular, he alleges that he was hit with a baton and with a wooden hammer, that he was beaten on the head with a plastic bottle filled with water while being handcuffed and chained to a pipe.
According to the applicant, on 20 February 2000 he was taken out of the cell and brought to an officer of the prosecutor's office who hit him on the head with a chair, stripped him naked, handcuffed the applicant's wrists and feet together, put the applicant on the knees and tortured him with electric shocks to force him to confess that he had committed the murder.
On 3 March 2000 the applicant sent a letter to his mother in which he mentioned that on the day of arrest he “was beaten almost to death” by police officers.
On 19 April 2000 the applicant's mother passed him certain medicines, allegedly for liver and kidney treatment.
On 26 July 2000 in the hearing of the criminal case against the applicant he pleaded guilty in having taken part in the robbery and murder, but contested that he had organised them. In this context he denied in part the confession he made at the interrogation. He alleged that he made it under duress. The court called and examined the investigator, Mr Tiskovskiy, who testified that during investigation “the applicant's state of health was normal” and that “he had never received any complaints from the applicant about ill-treatment by the police”. The court held that “[the applicant's] declaration that he had been beaten up upon arrest by police officers [was] unsubstantiated”, found that the statement at issue was consistent with other evidence, and recalled that the applicant kept changing his submissions concerning his role in the gang throughout the proceedings. On that basis it admitted the disputed statement as evidence aggravating the applicant's charge.
On 10 January 2001 the Supreme Court of the Russian Federation considered the applicant's appeal, which was based, in particular, on his complaint that the statements allegedly made under duress were wrongly admitted as evidence. It found that the first instance court exercised sufficient diligence examining the applicant's objections and rightly admitted the disputed evidence, given that the allegations of ill-treatment were completely unsubstantiated.
Following the communication of this case to the respondent Government the applicant's complaints about ill-treatment were apparently brought to the attention of competent domestic authorities. The latter, in turn, questioned the persons who could have witnessed the events concerned.
In this connection, on 4 and 6 June 2003 written statements were produced by Z. and M., the applicant's former cellmates in the cell No. 113 of the detention facility IZ-61/1. They testified that no physical force or other pressure was applied to the applicant or other inmates.
On 9 June 2003 the Pervomaiskiy District Prosecutor's Office conducted a further investigation. The investigator, the legal aid counsel who had been present at interrogation, and the police officers of the Pervomaiskiy police station who arrested the applicant, were questioned. All of them denied that ill-treatment had taken place, or that the applicant's confession had been forced. They stated that at the material time the applicant had no injuries and made no complaints about ill-treatment.
On 11 June 2003 the prosecutor's office concluded that no proof to the applicant's allegations could be found and refused to open criminal investigation into the alleged ill-treatment. It referred to the statements of the investigator, the counsel and the police officers. In addition, it stated that the existing security control would not allow the officers to bring the objects allegedly used for torture into the interrogation area and noted that the furniture in the interrogation area was secured to the floor.
2. Conditions of detention
From 18 February 2000 to 21 October 2000 the applicant
was detained on remand in the detention facility IZ-61/1 (then IZ-59/1)
Rostov-on-Don. Initially he was detained in a common cell No. 113.
Following the judgment of 26 July 2000, the applicant was transferred to the cell No. 88, a special cell for detainees serving a life sentence. For some time he was kept alone, until another detainee was placed in the same cell.
The applicant gives the following account of the conditions in the cell. It was a solitary confinement cell measuring 2.5 m x 2 m, 2.3 m high; there was no daylight; the 60 watt bulb was covered by two layers of dense metal mesh leaving the cell always dark, which made it impossible to read or write; the concrete floor was flooded with water, there was mould on the walls and the ceiling; there was no air ventilation; the air was stale and musty; the cell was dirty and overrun with cockroaches and infested with pests and mice; access to tap water was limited, as the tap could only be turned on by the warder outside the cell; the toilet was often blocked with sewage.
The Government submit that the cell No. 88 had a window, a toilet, a washbasin; that the temperature and humidity were maintained in accordance with the standard sanitary requirements; the applicant had a bed and was provided with a set of bedding.
On 24 August 2000 the applicant's mother complained to a prosecutor's office that the applicant's cell had no daylight and that it was damp.
On 25 August 2000 the applicant's counsel submitted a complaint to the administration of the detention facility claiming that the applicant should not have been transferred to a solitary confinement cell.
On 28 August 2000 the applicant's mother submitted a written complaint to the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office alleging, inter alia, that the applicant's cell was damp.
On 30 August 2000 the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office informed the applicant's mother that an inspection had been conducted further to her complaints about the applicant's detention conditions. He replied that the condition in his cell “generally satisfied the sanitary requirements, although the detainees slept in turns due to the shortage of bunk beds”.
On 6 September 2000 the Chief of the detention facility informed the applicant's counsel, in reply to his complaint of 25 August 2000, that the applicant was detained in a cell intended for a small number of inmates according to the law and to the applicant's own request.
On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ-61/1. They referred, in particular, to the poor detention conditions: insufficient light, humidity, lack of air ventilation, restricted access to tap water and toilet facilities.
On 21 October 2000, the applicant, further to his complaints about poor conditions in the cell No. 88, was transferred to the detention facility IZ-61/3 (then UC-398/T) in the town of Novocherkassk, where he remained until 6 December 2000. He was detained in solitary confinement cells Nos. 19 and 20.
The applicant alleges that his cell was cold; that he was not allowed to have blankets or warm clothes and thus had to sleep on a bare iron bed, that the sewage was often blocked and that his access to the water tap was limited.
The Government submit that the applicant's cells had adequate sewage and water supply, and that light and temperature were in accordance with standard sanitary requirements. The applicant was provided with clothes and bedding.
On 1 November 2000 the applicant's mother filed a complaint with the Rostov Regional Prosecutor's office which included a complaint about the poor conditions in the detention facility IZ-61/3. In particular, she complained that the applicant was placed in a solitary confinement cell with a limited water supply; she requested to be permitted to give him warm clothes and a blanket.
From 9 December 2000 to 18 February 2001 the applicant was held in SIZO-2 (IZ-77/2), a detention facility in Moscow. It appears that he was subsequently transferred back to the detention facility IZ-61/1.
On 2 March 2001 the Kirovskiy District Court of Rostov discontinued the proceedings against the prison administration as the parties had failed twice to appear before the court.
On 15 March 2001 the applicant was transferred from the detention facility IZ-61/1 to another penitentiary institution to serve his sentence.
On 14 February 2002 the Kirovskiy District Court of Rostov accepted the claim of the applicant's counsel that he had not been duly summoned to take part in the proceedings and reversed its decision of 2 March 2001.
On 12 March 2002 the applicant's mother filed a request to discontinue proceedings against the prison administration, as they were apparently brought by the applicant's counsel without consent of either the applicant or herself.
On 3 April 2002 the Kirovskiy District Court of Rostov decided to discontinue the proceedings against the prison administration as the plaintiff had failed two more times to appear before the court. The court also took into account the request of the applicant's mother to discontinue proceedings. This decision has not been appealed.
On 4 June 2003, following the communication of this case to the respondent Government, and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate concerning the conditions in the pre-trial detention. He wrote that the conditions in the detention facilities IZ-61/1, IZ-61/3 and SIZO-2 were satisfactory. He stated that he had had no complaints concerning his pre-trial detention conditions and that it was his counsel who wrote the complaint to the Court.
3. Criminal proceedings
The criminal proceedings against the applicant began on 9 February 2000.
On 20 February 2000 the applicant signed a confession that he had murdered two minors.
On 26 July 2000 the Rostov Regional Court held the applicant guilty on account of a robbery and an aggravated murder and convicted him to life imprisonment.
On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ-61/1. They claimed, inter alia, that the applicant was handcuffed whenever he visited him in the detention facility, which hampered reading the file and prevented the applicant from taking notes or writing complaints. He also complained that on several occasions the administration of the detention facility had hindered correspondence between the applicant and himself, which impeded the applicant's right to defend himself in the criminal proceedings. These proceedings were subsequently terminated for being abandoned by the applicant, as described above in para. 2 (“Conditions of detention”).
On 10 January 2001 the Supreme Court of the Russian Federation, acting on appeal, upheld the first instance judgment as to the substance, but reduced the sentence to 20 years' of imprisonment.
On 11 June 2003, following the communication of this case to the respondent Government and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate of the Rostov Region. He stated that he was not handcuffed during the meetings with his counsel in the period between October and December 2000. He made no comments as to other periods.
4. Newspaper publication
On 15 February 2000 a regional newspaper Vecherniy Rostov published an article based on an interview with the Pervomaiskiy District Prosecutor. The article was entitled “Three perverts valued children's lives at RUR 8,000”. The article was accompanied by the photograph of the prosecutor and the passport size photographs of the applicant and his two co-accused. The article referred to the prosecutor's opinion on the matter and contained, inter alia, the following statements:
“[...] Mr Ksenzov [i.e. the applicant], 20, one of the murderers, responded that they had to [kill them] because [one of the victims] had recognised him. The officers of the Pervomaiskiy District Prosecutor's office disagree. They are convinced that Ksenzov together with his companions in crime had a clear murderous intent, why would they carry knives otherwise? [...] The circumstances of the bloody crime were as follows [...]. The murderers are found to be three unemployed young men: Pavel Ksenzov, [A.P.] and [M.I.] [...]. The ringleader in the gang was Ksenzov [...]. A decision to create a criminal gang of three came earlier this year. They had no desire of earning by fair means, and were not skilled enough for burglary, hence they chose robbery [...]. They cut the first girl's throat and dragged the second one to the bathroom to torture her. [...] The perverts took money and then cruelly killed the girl hitting her in turn with knives and scissors. [...] The criminals were found within less than a day due to the professionalism of investigators of the Pervomaiskiy District Prosecutor's office. [...] All three [including Ksenzov] were arrested on 9 February. [...] 'What punishment awaits the murderers?', asks the Vecherniy Rostov's reporter. 'It is for the court to impose the sanction, although I can only add, as a human, that the capital punishment has not yet been officially abolished [...]', Mr Mkrtychev answers.”
On 30 June 2000 the applicant's counsel challenged before the Sovetskiy District Court of Rostov the newspaper publication of 15 February 2000. In particular, he requested to declare the statement of guilt publicly made by the prosecutor prior to a trial unlawful.
On 21 November 2000 the Sovetskiy District Court of Rostov held that the claim could not be examined, as the counsel had not been authorised by the applicant to bring any proceedings which fell outside the main criminal proceedings. This decision has not been appealed.
B. Relevant domestic law and practice
Powers to institute criminal proceedings
The relevant provisions of the Code of Criminal Procedure of 1960 in force at the material time were reviewed by the Constitutional Court of the Russian Federation in its Ruling No. 1-P dated 14 January 2000. It abolished the courts' power to institute criminal proceedings as incompatible with their judicial function, other that for a limited category of private prosecution cases. The relevant part of the ruling reads as follows:
“If a court examining a criminal case establishes facts which themselves disclose an appearance of a crime [committed by a third person], it must refrain from stating that there are sufficient grounds to suspect a particular person and from formulating charges, and must refer the relevant materials to the prosecution authorities competent to carry out further checks and to take a decision as to whether there are sufficient grounds to institute criminal proceedings. The latter are obliged to take immediate measures pursuant to the facts and circumstances established by the court.”
Action against public authorities' unlawful act or omission
The Federal Law N 4866-1 On Appeal against Acts and Omissions Infringing Individual Rights and Freedoms dated 27 April 1993, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual's rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State.
The Code on Civil Procedure as in force at the material time contained similar provisions.
The Civil Code provides for the procedure by which an individual can sue the State for damages in civil proceedings.
C. Materials referred to in the applicant's observations
According to the applicant, in 2000 the Ombudsman of the Russian Federation published a country report, which states that in 1999 263,645 complaints about police misconduct were filed, and that 902 out of them resulted in prosecution of police officers.
On 23 November 2001 the Rostov-based NGO Christians
against Torture and Child Slavery adopted a document entitled “Preliminary
Ill-Treatment during Pre-trial Investigation”. The report presents an account of 19 cases of ill-treatment in the Rostov Region recorded by this NGO. The reference period is not defined in the report, but at least two of the reported cases date back to 2000. The report also contains the following figures obtained through a questionnaire answered by 130 advocates of 17 different bar associations of the Rostov Region:
- 58 respondents had come across cases of ill-treatment by police;
did not believe that there existed effective legal remedies against
- 10 believed that such remedies existed;
did not consider it possible to receive compensation for
- 10 considered it possible;
- other respondents have never considered to seek redress;
- a majority did not believe that emergency medical assistance was readily available in the event of ill-treatment by police.
On that basis the report concluded that torture of suspects in criminal cases was a “common practice”
1. The applicant complains under Article 3 of the Convention that he was subjected to torture and inhuman and degrading treatment upon his arrest and during his pre-trial detention and that the investigation into his claims were ineffective.
2. He also complains under Article 3 of the Convention that the conditions in the pre-trial detention facilities amounted to inhuman and degrading treatment. He particularly refers to the period of his detention in the cell No. 88 of the detention facility IZ-61/1 and in the detention facility IZ-61/3.
3. The applicant complains under Article 6 § 3 (b) and (c) of the Convention that he could not effectively prepare his defence in the detention facilities. In particular he complains that he was handcuffed during the visits by his legal counsel and while accessing his criminal case file and that his correspondence with his counsel was hindered.
4. The applicant complains under Article 6 § 2 of the Convention that the publication of an interview with the Pervomaiskiy District Prosecutor in the newspaper contained statements as to the applicant's guilt in violation of the presumption of innocence.
1. The applicant complains that upon his arrest and during his detention on remand he was beaten up by police officers to extort his confession in a criminal case. Furthermore, he complains that the investigation into his allegations of ill-treatment were ineffective. He relies on Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government contest the allegations of ill-treatment. They contend that the applicant has been interrogated in the presence of his counsel and that no complaint about ill-treatment was made by the applicant at the material time, before bringing the matter up in the criminal proceedings against him. They refer to the grounds of the refusal to open criminal investigation into the applicant's allegations of ill-treatment, dated 11 June 2003, and claim that the applicant's allegations are unsubstantiated. They also invoke written statements by M. and Z., the applicant's former cellmates, disclaiming that physical force or other pressure was applied to inmates.
The applicant maintains his complaint. He alleges that he was beaten up in the detention facility on two occasions. He refers to the letter which he sent on 3 March 2000 to his mother in which he stated that on the day of arrest he “was beaten almost to death” by the police. He also claims that he had suffered medical conditions as a result of being beaten up and refers to the prison records of 19 April 2000 which certify that his mother passed him certain medicines, allegedly for liver and kidney treatment.
The applicant claims that he could not undergo medical examinations in the prison. He also claims that he had not complained immediately after the acts of ill-treatment as it would clearly be of no use. In support of his statement he refers to the 2000 country report of the Ombudsman of the Russian Federation, according to which only 902 out of 263,645 complaints filed in 1999 about police misconduct resulted in prosecution of police officers. He also invokes a report prepared by a local NGO which gave an account of ill-treatment cases in the Rostov Region and which stated that torture of suspects in criminal cases was a “common practice”.
He further contends that no effective investigation was conducted into his allegations of ill-treatment. In particular, he complains that the first instance court did not conduct a proper investigation further to his allegations of ill-treatment. He contends that questioning the investigators before the court was a mere formality. He also objects to the decision of 11 June 2003 refusing criminal investigation for being “incomplete and prejudiced”. Finally, he challenges the statements by M. and Z. as unreliable in view of the fact that both of them were serving their sentence in prisons at the time they made these submissions.
The Court notes that the applicant's complaint about ill-treatment involves two issues under Article 3: firstly, the alleged beating by police, and, secondly, the alleged lack of an effective investigation into allegations of ill-treatment.
As regards the first point, the Court recalls
that 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 v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).
In the present case the applicant's complaints are not corroborated by a medical certificate. Although the applicant contends that in the detention he could undergo no medical examination to record his injuries, he does not appear to have ever requested one. Furthermore, the applicant has not provided any other evidence in support of his statements. Although he claims that his cellmates and his counsel could have seen the marks of beating, he has not submitted any statements by such witnesses. In particular, the applicant's counsel made no statement to this effect and this remains unexplained. Finally, the account of events given by the applicant himself is vague and confused, lacking essential details such as the number of persons involved, precise location where the alleged ill-treatment took place, its duration, the description of injuries sustained etc.
Accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant, beyond reasonable doubt, was beaten up by police officers in the pre-trial detention, as alleged by him.
It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
As regards the alleged lack of an effective investigation, the Court recalls that where an individual has an arguable claim that he has been ill-treated in breach of Article 3, the notion of an effective remedy entails, in addition to a thorough and effective investigation of the kind also required by Article 3, effective access for the complainant to the investigatory procedure and the payment of compensation where appropriate (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2286, §§ 95 and 98).
However, the applicant has not made any steps to bring his complaint to the attention of the domestic authorities immediately following the alleged ill-treatment. He does not dispute that it was open to him to request a superior prosecutor's office to open a criminal investigation, as well as immediately to bring an action against the public authorities' allegedly unlawful act, or a civil action for damages during which the authorities could conduct a medical examination and record the injuries, if any.
The first time the applicant invoked ill-treatment
was when he pleaded it before the courts adjudicating on his criminal
charge, 5 months after the events at issue. The law in force at the
material time required that a court, when confronted with a prima facie case of ill-treatment, forwarded relevant information
to the prosecution authority competent to institute criminal proceedings.
In the present case, the court confronted a bold declaration of ill-treatment
which was not supported by a medical certificate, or witnesses' testimonies,
or even a detailed account of the underlying circumstances. The declaration
of ill-treatment did not aim at the acknowledgement of
ill-treatment as such but came in the context of the admissibility of evidence: the applicant sought to declare that his statement made during the investigation was inadmissible as having been obtained under duress. Since the applicant did not expressly seek redress for the alleged ill-treatment it was appropriate for the court to limit its involvement in the matter to deciding on the admissibility of the applicant's statement as evidence. Given that the applicant did not specify any other witnesses or evidence to be examined in the proceedings, the court's own choice to cross-examine the officers in charge of the applicant's arrest does not appear to be inappropriate or feigned. In view of the absence of prima facie evidence in support of the applicant's declaration, the court's conclusion that the allegations of ill-treatment were unsubstantiated does not seem unreasonable or arbitrary.
In so far as the applicant contests the decision of the Pervomaiskiy District Prosecutor's Office of 11 June 2003, the Court notes that the applicant has never challenged it before a competent court, although such possibility was expressly provided for.
In sum, the Court considers that the complaint about the lack of effective investigation into allegations of ill-treatment is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Under Article 3 of the Convention the applicant complains also that the conditions in the pre-trial detention facilities amounted to inhuman and degrading treatment. He refers in particular to the conditions in the cell No. 88 of the detention facility IZ-61/1, claiming that it was extremely humid, had insufficient light, ventilation, water supply and sewage and that it was infested with pests and mice. He also referred to the conditions in the detention facility IZ-61/3, claiming that it was cold, that he was not allowed to have beddings and had to sleep on bare iron bed, that the sewage was often blocked and that his access to water tap was limited.
The Government disagree that the conditions throughout the applicant's detention was incompatible with Article 3 of the Convention. They claim that a cell No. 88 had a toilet and a washbasin and that the humidity in the cell complied with standard requirements. As to the period in the detention facility IZ-61/3, the Government state that the temperature in the cell complied with standard requirements and that the applicant has been provided with beddings. According to the Government, during the applicant's detention in the facilities IZ-61/1 and IZ-61/3 he was entitled to a one-hour walk daily and to a 15-minutes' shower weekly; that he was subject to regular medical checks which revealed no injuries or health problems; that the detention cells were subject to regular sanitary checks, that preventive measures were taken against spread of infectious diseases and that rodent extermination was regularly carried out.
The applicant in response restates his allegations. He claims that he complained many times to the prosecutor's office and to a court about unbearable conditions in his cell. He contests the conclusion of the inspection carried out 30 August 2000 that the conditions in the cell complied with sanitary requirement. He states that he made further complaints to the prosecutor's office and was eventually transferred to the detention facility IZ-61/3. As to the latter, the applicant maintains his complaint, making no specific comments as to this part of the Government's observations.
The Court notes that the periods of detention relevant to the complaints under Article 3 ended on 21 October 2000 and 6 December 2000 respectively. This application was lodged on 7 July 2001, i.e. more than six months after the last day of the second period.
The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act occurs is taken to be “final” for the purposes of the six months' rule (see, e.g., Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).
In the present case the complaints about the conditions of detention were not a subject of a final decision by the domestic authorities. The action which could have led to a court judgment on the matter was withdrawn by the applicant in 2002 for reasons not imputable to authorities. Accordingly, there has been no domestic decision which would constitute a “final decision” for the purposes of calculating the six months period provided for in Article 35 § 1 of the Convention.
Thus, leaving aside the question of non-exhaustion of domestic remedies, it follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The applicant complains that he could not effectively prepare his defence in the detention facilities. In particular he complains that he was handcuffed during the visits by his legal counsel and while accessing his criminal case file and that his correspondence with his counsel was hindered. He invokes Article 6 § 3 (b) and (c) of the Convention which provides as follows:
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; ...”
The Government deny that throughout the pre-trial detention the applicant was handcuffed during the visits of his lawyer. They refer to the information given by the Prosecutor General's Office and the Minisrty of Justice and by the applicant's written statement made on 11 June 2003. However, they acknowledge that for security purposes the prisoners convicted to a life sentence are systematically handcuffed when taken outside their cell. They contend that handcuffing thus applied cannot be said to hamper the communication between the prisoner and his lawyer. The Government also contest that the applicant's correspondence with his counsel was hindered by the prison administration. They submit that according to the records of the Rostov Regional Prosecutor's Office as of 10 June 2003 the applicant sent only two letters through official channels – one to the Supreme Court of the Russian Federation and one to the Rostov Regional Court – both of which had been duly posted to the above courts. They further submit that the applicant met his counsel in person 22 times in the detention facility IZ-61/1 and four times in the detention facility IZ-61/3. The Government considers the complaint under Article 6 § 3 (b) and (c) unsubstantiated.
The Government claim moreover that these complaints should in any event be declared inadmissible for the applicant's failure to pursue domestic proceedings against the prison administration. They refer to the proceedings terminated by the Kirovskiy District Court of Rostov on 3 April 2002 for the plaintiff's failure to appear before the court and with regard to the request of the applicant's mother to discontinue the proceedings.
The applicant does not accept that he was at fault in not pursuing domestic proceedings. He alleges that the parties' absence did not constitute a legitimate ground to terminate proceedings and considers that the Kirovskiy District Court was obliged to examine the case and take decision in any event.
The Court observes, firstly, that both complaints at issue invoke specific guarantees of a right to a fair hearing in the determination of a criminal charge, which the applicant could have raised in the criminal proceedings against him. Indeed, the courts determining the criminal charge against the applicant were in the best position to address and, if necessary, remedy the alleged shortfalls, for example, by allowing the applicant additional time to prepare his defence. However, the applicant has not used this opportunity to bring up the subjects of the handcuffing or the lack of communication with his lawyer pending the trial.
Secondly, the Court observes that separate proceedings on this subject, were terminated on 3 April 2002 for his counsel's failure to appear before the court. The termination was never challenged either by the applicant or any of his counsels.
It follows that these complaints have not been pursued before domestic authorities either in criminal proceedings against the applicant or by means of a separate action. The Court therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. The applicant complains under Article 6 § 2 of the Convention that the publication of an interview with the Pervomaiskiy District Prosecutor in the newspaper contained statements as to the applicant's guilt in violation of the presumption of innocence.
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Government claim that the applicant has not exhausted domestic remedies in respect of the alleged violation. They point out that on 21 November 2000 the Sovetskiy District Court of Rostov examined the claim lodged by the applicant's counsel and dismissed it on formal grounds, notably for the absence of formal authorisation by the applicant given to his lawyer to pursue these proceedings on his behalf.
The applicant gives no justification for his failure to duly authorise his counsel to represent him before the court, or for their, or his, failure to challenge the dismissal of the claim.
The Court observes that the presumption of innocence, like the Article 6 § 3 guarantees at issue in para. 3 above, can be viewed as a specific guarantee of a fair hearing in the determination of a criminal charge, which the applicant could invoke before the courts examinig criminal charge against him. However, the complaint about the statement of guilt made by the prosecutor pending the applicant's trial has not been raised either in the first instance or on appeal.
As to the separate action referred to by the Government, by which the applicant challenged the prosecutor's statements, the Court observes that these proceedings were terminated on formal grounds. However, neither the applicant nor his counsel appealed against the refusal to examine the claim, although such possibility was expressly provided for in the same decision. The applicant could, alternatively, have issued a power of attorney to his counsel and lodge the proceedings anew, but he has not done so either.
It follows that this complaint has not been pursued before domestic authorities either in criminal proceedings against the applicant or by means of a separate action.
The Court therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
KSENZOV v. RUSSIA DECISION
KSENZOV v. RUSSIA DECISION