FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 78146/01 
by Aleksey VLASOV 
against Russia

The European Court of Human Rights (First Section), sitting on 14 February 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 4 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 FACTS

The applicant, Mr Aleksey Yuryevich Vlasov, is a Russian national, who was born in 1957 and lives in Moscow. He is represented before the Court by Mr V. Kuznetsov, a lawyer practising in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

The applicant was director of the diamonds manufacturing and export company “Olympia-Amros” (“the company”).

1.  Litigation between the company and the customs office

On 29 March 1999 the Sheremetyevo Customs Office intercepted a shipment of diamonds dispatched by the company to a foreign purchaser. The reason for the interception was that the purchaser’s address did not match the one stated in the export contract.

On 4 October 1999 the Sheremetyevo Customs Office found the company in breach of customs regulations and imposed a fine of 23,244,971 Russian roubles.

Further to the company’s appeal, on 20 April 2000 the Commercial Court of Moscow determined that the customs office had acted unlawfully because it had issued the decision more than six months after the breach had been uncovered and because it had not recorded the number and weight of the intercepted diamonds. The court voided the decision of 4 October 1999.

The Sheremetyevo Customs Office lodged an appeal with the Appeals Division, but later withdrew it.

On 18 December 2000 the first deputy Prosecutor General lodged an application for supervisory review of the judgment of 20 April 2000. On 13 February 2001 the Presidium of the Supreme Commercial Court quashed the judgment of 20 April 2000 and remitted the matter for a new examination by the first-instance court. According to the applicant, he only found out about these developments in February 2002 while reading the file materials in criminal case no. 9307.

On 18 October 2001 the Moscow Commercial Court stayed these proceedings pending completion of the criminal proceedings against the applicant (see below).

2.  Criminal proceedings against the applicant

(a)  Arrest and detention pending trial

On 9 July 1999 a criminal case (no. 144129) was opened against the applicant. He was suspected of having smuggled diamonds using forged export contracts, an offence under Article 188 § 4 of the Criminal Code.

On 18 August 1999 the applicant was arrested. On 20 August 1999 a prosecutor remanded him in custody.

On 16 September 1999 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s request for release on bail. On 7 October 1999 the Moscow City Court upheld the refusal on appeal.

On 14 October 1999 a deputy Prosecutor General extended the applicant’s detention until 9 January 2000. On 16 December 1999 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order because, in the court’s view, the applicant’s “character” justified the detention. On 17 January 2000 the Moscow City Court upheld that decision on appeal.

On 30 December 1999 a deputy Prosecutor General extended the applicant’s detention until 18 May 2000. On 19 April 2000 the Preobrazhenskiy District Court dismissed the applicant’s appeal against the extension order, finding that the order had been “lawful and justified” but without giving further grounds in support of this finding.

On 16 May 2000 a deputy Prosecutor General extended the applicant’s detention until 18 August 2000. On 4 August 2000 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order, finding that it had been lawful and justified. On 27 December 2000 the Moscow City Court upheld that decision on appeal.

On 16 August and 18 September 2000 the acting Deputy Prosecutor General extended the applicant’s detention until 18 September and 18 November 2000 respectively. On 26 September 2000 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension orders, finding that they had been justified because of the applicant’s “character” and absence of “gross violations” of the criminal-procedure laws. On 9 January 2001 the Moscow City Court upheld that decision on appeal, referring to the applicant’s “character” and the gravity of the charges against him.

On 17 November 2000 the Prosecutor General extended the applicant’s detention until 18 February 2001. On 31 January 2001 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension order, finding that the applicant’s “character” and the gravity of the charge rendered his detention lawful and justified. On 23 April 2001 the Moscow City Court upheld that decision on appeal.

(b)  Splitting-up of criminal cases

On 9 December 2000 the applicant was additionally charged with offences under Articles 188 § 3 (smuggling), 191 § 2 (unlawful trade in precious stones), and 327 (forgery of official documents) of the Criminal Code.

On 28 December 2000 fifteen counts of smuggling, unlawful export of precious stones and forgery of documents were severed into a new criminal case which was given the number 9307.

On 18 February 2001 investigation into the remaining charges in the framework of case no. 144129 was stayed. On 26 February 2002 the investigation resumed and has been pending since.

(c)  Trial in case no. 9307

On 12 January 2001 the applicant was given access to the case file. Further to the prosecution’s requests, on 16 February and 16 April 2001 the Moscow City Court extended the applicant’s detention until 18 April and 18 August 2001, respectively. Each time the court noted that there were no grounds to vary the preventive measure imposed on the applicant, no matter the arguments advanced by the defence and personal sureties offered on the applicant’s behalf by a member of the Russian Parliament and a member of the Russian Academy of Sciences. It also referred to the gravity of the charges and to the applicant’s “character”. On 11 April and 23 May 2001 the Supreme Court upheld the City Court’s decisions on appeal, finding that there were “no sufficient grounds to vary the preventive measure”.

According to the Government, the applicant’s counsel, Mr Korolev and Mr Dudnik, deliberately dallied over the case-file materials. On 26 February 2001 the investigator asked the president of the Moscow bar to ensure counsel’s regular attendance. On 28 March and 25 April 2001 the investigator’s superior repeated that request. The Government produced four reports of 1, 8 and 18 June 2001. In these reports investigation officers described private conversations with the applicant’s representatives who had allegedly stated that they would procrastinate until the maximum period of the applicant’s detention had expired.

On 13 July 2001 case no. 9307 was submitted for trial before the Golovinskiy District Court of Moscow.

On 6 August 2001 the District Court remitted the case for further investigation. On 3 October 2001 that decision was set aside by the Moscow City Court, and the trial resumed.

On 11 December 2001 the District Court fixed a hearing for 25 December but then adjourned it to 28 January 2002 because the applicant’s counsel had gone on holidays.

On 28 January 2002 the District Court refused the applicant’s petition for release. On 21 February 2002 the Moscow City Court upheld that decision on appeal.

On 15 March 2002 the District Court extended the applicant’s detention until 29 April 2002, finding that his release would hinder “a thorough, comprehensive, and objective examination of the case”.

On 1 April 2002 the District Court remitted case no. 9307 for further investigation. It found that the charges were formulated vaguely, that the applicant had not been questioned as a suspect, that his access to the file had been unlawfully restricted, and that the severing of certain charges had not been justified. These defects were to be remedied by the investigation. The court authorised the applicant’s further detention.

(d)  Release on bail and conviction in case no. 9307

On 12 July 2002 the Golovinskiy District Court released the applicant on bail.

The hearing fixed for 26 July 2002 had to be adjourned until 9 September 2002 because one counsel was involved in concurrent proceedings and the other counsel was on leave.

On 2 October 2002 the hearing was adjourned owing to the prosecutor’s illness. On 18 March and 13 May 2003 hearing were postponed at the applicant’s request.

On 17 October 2002 the passports authority refused to issue a travel document to the applicant referring to the pending criminal proceedings against him.

On 28 July 2003 the Golovinskiy District Court found the applicant guilty of smuggling of, and unlawfully trading in, diamonds. The applicant was given a suspended sentence of five years and six months’ imprisonment conditional on three years’ probation.

On 29 November 2003 the Moscow City Court upheld, on an appeal by the applicant, the judgment of 28 July 2003.

2.  Restrictions on family visits and correspondence

(a)  Restrictions on family visits

On 24 December 1999 the investigator refused leave for a visit by the applicant’s mother and his wife. She stated that permitting visits was the investigator’s discretion rather than an obligation.

On 27 October 2000 the investigator refused counsel’s request of 28 September 2000 to allow the applicant to see his wife. The investigator indicated that the applicant’s wife was aware “of certain circumstances that [were] relevant to the matters under investigation” and also had “an interest in the outcome [of the case]”. As “parental visits [could] be used for establishing contacts with other members of the organised criminal group or obstructing the establishment of the truth”, the wife’s visit would be “inopportune”.

On 4 January 2001 the investigator refused a visit by the applicant’s seven-year-old daughter, stating that the applicant could use the visit for obstructing the investigation.

On 17 January, 23 February, 12 and 13 March, 12 April, 14 May, 1 June and 2 July 2001 the investigator allowed the applicant to see his mother and/or daughter.

(b)  Restrictions on the applicant’s correspondence

On 20 December 1999 the applicant sent a complaint about refusal of family visits and interference with his correspondence to the Basmannyy District Court of Moscow. On the following day the head of the correspondence department of the remand centre refused to post the complaint and returned it to him with a handwritten note in capital letters “[your] complaint has no prospect [of success]”.

On 22 December 1999 the applicant complained to the Ministry of Justice and the Prosecutor General’s Office that his complaint had not been posted. On 13 January 2000 the applicant received back his complaint addressed to the Ministry of Justice. No reply from the Prosecutor General’s Office was received.

On 9 February 2000 the investigator refused to post the applicant’s letters addressed to his wife (three letters) and mother (two letters). She returned them to the director of the remand centre with a note stating that the letters could not be dispatched “on the basis of section 20 § 2 of the Custody Act”. No further reasons or clarifications were given.

According to the Government, in 2001 the applicant did not send any letters to his relatives. His letters to public authorities were not subject to censorship and were posted without delay. Incoming letters were handed over to him on the day of receipt.

(c)  Restrictions on the exchange of documents

On 6 March 2000 the applicant issued forms of authority to his counsel, Mr Kuznetsov and Ms Vasilyeva. By a letter of 20 March 2000, the first deputy director of the Investigations Department of the Interior Ministry refused to pass the forms on to counsel and returned them to the director of the remand centre, on the ground that the scope of the delegated authority had not been broader than the power to carry out civil transactions [sic].

On 30 August 2000 the applicant’s counsel submitted to the investigator a batch of documents concerning the commercial proceedings, to which the applicant’s company was a party (see above). On 28 September 2000 the investigator refused to hand them over to the applicant, indicating that the applicant would be able to read them only after the investigation had been completed.

On 29 May 2001 the director of the remand centre refused the counsel’s request to pass a law book to the applicant, without giving any reasons.

(d)  Appeals to the courts

On 28 March and 5 September 2000 the applicant complained to the Presnenskiy District Court of Moscow about interception of the authority forms and commercial documents. By decisions of 7 April and 9 June 2001, the Presnenskiy District Court of Moscow disallowed the applicant’s complaints, finding that the law did not provide for judicial review of the investigator’s decisions concerning restrictions on family visits, correspondence or exchange of documents. On 3 October 2001 the Moscow City Court confirmed on appeal that the applicant’s complaint was not amenable to judicial review.

On 10 July 2001 the Basmannyy District Court of Moscow, by a non-procedural letter, informed the applicant that his complaints concerning restrictions on family visits and correspondence could not be examined by a court.

The applicant complained to the Constitutional Court that he had not been able to obtain a judicial review of restrictions on family visits, correspondence and exchange of documents.

By decision of 21 December 2001 (no. 298-O), the Constitutional Court confirmed its constant case-law that all decisions by an investigator or prosecutor that affected the interested party’s constitutional rights and were not related to the merits of the criminal charge, should have been amenable to judicial review. The court pointed out that the decisions of the lower courts refusing examination of the applicant’s complaints had to be reviewed in accordance with the established procedure.

It does not appear that the proceedings on the applicant’s complaints have been re-opened.

4.  Conditions of the applicant’s detention and transport

(a)  Detention in the period from 18 to 27 August 1999

From 18 to 27 August 1999 the applicant was held in the temporary confinement ward of the transport department of the Moscow police. According to him, he was put in a dark cell without a bed, running water or toilet. He was fed once a day and could use a toilet twice a day.

(b)  Detention in the period from 27 August 1999 to 12 July 2002

From 27 August 1999 and until his release on 12 July 2002 the applicant was held in special-purpose remand centre no. IZ-99/1 (formerly no. IZ-48/4, known as “Matrosskaya Tishina”).

The applicant stayed in ten cells that either measured 14 sq. m and had six sleeping places, or measured 32 sq. m and contained ten bunks. The design capacity of the cells was never exceeded.

Window frames were bricked in with semi-transparent glass cubes. In addition, there was a layer of thick bars with so-called “eyelashes”, that is slanted plates welded to a metal screen approximately 2 cm apart. This construction gave no access to natural air or light. In the Government’s submission, “eyelashes” were removed on 25 November 2002, that is after the applicant’s departure. The applicant indicated that between February 2000 and summer 2002 private fans had been prohibited in the cells, but in the daytime ventilation was on.

Cells were constantly lit with fluorescent lighting. The applicant claimed that insufficient lighting had impaired his eyesight that had fallen by 2.5 dioptres. On 21 June 2001 he asked to see an ophthalmologist and then repeated his request no fewer than seven times between 30 July 2001 and 20 June 2002. The Government explained that no consultation had been arranged because the medical unit of the remand centre had had no staff ophthalmologist and because the applicant had always been away for court hearings. The applicant responded that the hearings had not started until 28 January 2002, that is more than seven months after he had asked for consultation.

The lavatory pan was placed in the corner of the cell. The Government produced a photo of the pan showing that it had been separated from the living area with a 85-centimetre-high tiled brick partition and shower curtains above it. The applicant responded that the partition and curtains had apparently been a recent development, during the period of his detention there had been no tiles and hanging of curtains of any kind had been prohibited. Furthermore, until 22 August 2001 the walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them.

Open air exercise was permitted for one hour a day and shower could be taken for twenty minutes once a week.

Finally, the applicant submitted that he had been the only non-smoker and suffered from passive smoking. The Government indicated that separation of non-smokers from smokers had been materially impossible.

In support of his submissions the applicant produced affidavits by his former cellmates, Mr M. Ignatov, Mr S. Kucherov and Mr A. Kolmykov.

(c)  Conditions of transport

The applicant was transported from the remand centre to the courthouse and back more than 120 times. Transport of detainees was arranged by officers of the escort regiment of the Moscow Department of the Interior (конвойный полк ГУВД г. Москвы). Two types of prison vans were used for transport, both contained two collective cells and one individual cell. Vans were equipped with ventilation outlets and benches.

The Government submitted that van heaters were in operation when the engine was running. The applicant denied that the van was heated.

The applicant indicated that the travel time between the remand centre and the court had been excessively long and sometimes as long as seven to eight hours. During that time he had been held in the closed van, without food or drink or access to toilet. The applicant produced a detailed table, indicating the time he had spent in the “assembly cell” before departure, the time on the way to the courthouse and the time on the way back. It follows from the table that on seventeen occasions the aggregate travel time exceeded five hours and on six occasions it was longer than eight hours.

Between 20 February 2001 and 17 June 2002 the applicant sent nine complaints about the “torturous” conditions of transport to many officials, including the director of the remand centre, the Prosecutor General, and the officer-in-command of the escort regiment. According to the Government, the officer-in-command of the escort regiment had acknowledged that there had been “some irregularities” in the transport of detainees and ordered that the applicant be transported by a separate van.

B.  Relevant domestic law

The Law on the Detention of Suspects and Defendants (no. 103-FZ of 15 July 1995, hereinafter the “Custody Act”) establishes that a detainee may have up to two parental visits a month, each up to three hours long. Visits shall be authorised in writing by the authority in charge of the criminal case. Number and length of visits by counsel is not limited (section 18).

Detainees may send an unlimited number of letters and telegrams to their relatives and other persons. Correspondence is subject to censorship by the management of the remand centre. Letters containing information that can obstruct the establishment of the truth or facilitate criminal activities, will not be dispatched (section 20).

The Internal Rules for Remand Centres of the Ministry of Justice (order no. 148 of 12 May 2000) provide as follows:

“84. Letters... are received and dispatched through the management of the remand centre. Correspondence of detainees is subject to censorship.

91. Letters and telegrams addressed to suspects and defendants who are at large, victims, witnesses, as well as those containing any information whatsoever in respect of the criminal case, insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of passing of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and handed over to the authority in charge of the criminal case.

92.  All correspondence by the detainees shall be recorded in a special register where dates of receipt and dispatch are noted...”

For a summary of domestic-law provisions on pre-trial detention, see Panchenko v. Russia (no. 45100/98, §§ 74-89, 8 February 2005) and Rokhlina v. Russia (no. 54071/00, §§ 47-58, 7 April 2005).

COMPLAINTS

1.  The applicant complained that the conditions of his pre-trial detention amounted to inhuman and degrading treatment in breach of Article 3 of the Convention and that he had no effective remedy in respect of this complaint, as required by Article 13 of the Convention.

2.  The applicant complained that the conditions of transport between the remand centre and the courts had amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

3.  The applicant complained that his pre-trial detention had been excessively long and not justified in the meaning of Article 5 § 3 of the Convention.

4.  The applicant complained under Article 6 § 1 that the length of criminal proceedings against him had exceeded a reasonable time.

5.  The applicant complained under Article 6 § 1 that the final judgment of 20 April 2000 by the Moscow Commercial Court – which had been of direct relevance for his criminal case – had been quashed by the Presidium of the Supreme Commercial Court by way of supervisory-review proceedings.

6.  The applicant complained under Article 8 of the Convention that during pre-trial detention his contacts with the family had been excessively restricted.

7.  The applicant complained under Article 8 that his correspondence in detention, including that with courts and other public authorities, had been censored and arbitrarily intercepted or delayed.

8.  The applicant complained under Article 13 of the Convention that he had no effective domestic remedy in respect of his Article 8 complaints.

9.  The applicant complained under Article 2 of Protocol No. 4 that he had been unlawfully denied a travel document.

THE LAW

1.  The applicant complained Article 3 of the Convention that the conditions of his detention had been inhuman and degrading. Invoking Article 13 of the Convention, he claimed that no domestic remedy had been available to him in respect of that grievance. The invoked Articles read as follows:

Article 3 (Prohibition of torture)

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

Article 13 (Right to an effective remedy)

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

The Government submitted that the conditions of the applicant’s detention had been generally compatible with Article 3. The applicant had sent more than one hundred complaints to various authorities but had never asked for an improvement of his conditions of detention. He had not complained about the conditions of detention to either the supervising prosecutors, or to the director of remand centre no. 99/1, or to the Preobrazhenskiy District Court of Moscow which had had territorial jurisdiction over the remand centre. The Government inferred therefore that the applicant had had effective remedies at his disposal.

The applicant contested the Government’s submissions as factually untrue and maintained his account of the conditions of detention. He had sent many complaints about various aspects of the conditions of detention to supervising prosecutors and to the management of the remand centre. A few of these complaints he had handed over to the supervising prosecutor Mr L. in person when L. had inspected the cells. Even assuming that the domestic law provided for a judicial review of the conditions of detention, in practice the courts refused to examine such complaints as they had refused to examine his complaints about restrictions on family visits and correspondence (see below).

(a)  In so far as the applicant complained about his detention from 18 to 27 August 1999, the Court notes that he only introduced his application on 4 July 2001, that is more than six months after the end of that period.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  In so far as the applicant complained about the conditions of his detention in remand centre no. IZ-99/1 (“Matrosskaya Tishina”), 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 it 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.

(c)  In so far as the applicant claimed that no effective domestic remedy had been available for his complaint about inhuman conditions of detention, 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 it 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 complained under Article 3 of the Convention that the conditions of transport between the remand centre and the courthouse had been likewise inhuman and degrading.

The Government submitted that the applicant had received breakfasts and dinners and had been able to take his own food with him. Vans had been heated and ventilated. After the applicant had complained about the conditions of transport, the officer-in-command of the escort regiment had ordered that he be transported by a separate van. Thereafter the applicant had had no further complaints about the conditions of transport.

The applicant responded that a special van had been made available only thirteen times, whereas in total he had been transported to the courthouse on 120 days. Vans had been crammed, not heated and unfit for transport of detainees. He had been denied food, drink and access to toilet for up to eight consecutive hours. In his view, such treatment amounted to torture.

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

3.  The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and not founded on sufficient grounds. Article 5 § 3 provides as follows:

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

The Government submitted that the placement of the applicant in custody had been lawful and justified, that his detention had been extended in strict compliance with the domestic law and that he had been able to obtain a judicial review of all detention orders. They inferred therefrom that there had been no violation of the applicant’s right under Article 5 § 3.

The applicant responded that the scope of the judicial review had been limited to formal aspects. The domestic courts had not examined any concrete facts arguing for or against the necessity to deprive him of liberty. The decisions of the Preobrazhenskiy District Court and Moscow City Court had not established any specific requirements of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty. Furthermore, the Golovinskiy District Court had given him a suspended sentence which demonstrated that pre-trial deprivation of liberty had not been necessary.

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

4.  The applicant complained under Article 6 § 1 about the excessive length of criminal proceedings against him. The relevant parts of Article 6 § 1 read as follows:

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

The Government considered that the length of proceedings in both criminal cases (no. 144129 and no. 9307) was compatible with the “reasonable-time” requirement. They laid a special emphasis on the fact that from 5 January to 23 July 2001 delays had been due to the conduct of the applicant’s counsel who had deliberately lingered over the case materials. In total, delays attributable to the applicant and his counsel amounted to approximately one year. Furthermore, case no. 9307 was a complex and voluminous one, it contained fifty-five binders.

The applicant contended that the domestic authorities had not shown due diligence in the conduct of the proceedings. Owing to the poor quality of investigation, the District Court could not begin trial and returned the case for further investigation on two occasions, on 6 August 2001 and 1 April 2002. The applicant had been the only defendant and the case had not been particularly complex. In case no. 144129 no investigative steps were taken since 18 February 2001 when the investigator stayed the proceedings. Even assuming that some delays had been attributable to his counsel, the Government did not furnish a convincing explanation of the other delays.

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

5.  The applicant complained under Article 6 § 1 of the Convention about the quashing of the final judgment of 20 April 2000 by way of supervisory-review proceedings initiated by the Prosecutor General’s Office.

The Government submitted that parties to the proceedings were the private company “Olympia-Amros” and the Sheremetyevo Customs Office, whereas the applicant was not a party. The proceedings concerned a breach of the customs regulations committed by the company and their outcome had no incidence on the applicant’s conviction in criminal proceedings.

The applicant replied that in his application for supervisory review the deputy Prosecutor General had explicitly referred to the charges against him. He had not been informed about the application for supervisory review or invited to the hearing before the Presidium of the Supreme Commercial Court.

The Court observes that a party to the commercial litigation was the company, of which the applicant was director, rather than the applicant himself. As it was not claimed that he was also the sole owner of the company, the Court cannot identify him with the company (see Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; and, by contrast, Ankarcrona v. Sweden (dec.), no. 35178/97, 27 June 2000). It further reiterates that a person cannot complain about a violation of his rights in the proceedings, to which he was not a party, despite the fact that he was a shareholder and/or executive director of the company which was the party to the proceedings (see Nosov, cited above, with further references). The applicant therefore cannot claim to be a “victim” of the alleged violation of Article 6.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

6.  The applicant complained under Article 8 of the Convention about excessive restrictions on family visits during his pre-trial detention. Article 8 provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government maintained that a possibility for a detainee to have family visits was regulated by sections 17 and 18 of the Custody Act. However, a decision to allow family visits was made by the investigator on a case-by-case basis, without there being a statutory obligation to grant permission. In the present case the applicant’s wife, who had been the company’s lawyer, had been involved in business matters under investigation. As the applicant had been suspected of having committed offences in conspiracy with others, the investigators had reasonably believed that during a family visit he would be able to pass information about the investigation to his relatives and through them to other unidentified persons. That would have compromised the secret of investigation and obstructed the establishment of the truth. In any event, in 1999 the applicant was permitted on “humanitarian grounds” to talk to his wife in the presence of the investigator and escort policemen. However, he used these meetings to communicate further information about the case. In 2001 the applicant was regularly permitted to see his mother and daughter.

The applicant submitted that an absolute ban on family visits during seventeen months of pre-trial detention had been in breach of the domestic law which provided for the detainee’s right to two family visits a month (section 18 of the Custody Act). He had had access to all the relevant materials long before the beginning of the investigation in 1999 and he had been granted access to the case-file on 15 January 2001; thus, he had not been able to communicate any secret information to his wife in the intervening period. He had been tried and convicted alone, so the Government’s reference to a possibility of collusion with “other unidentified persons” was far-fetched.

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

7.  The applicant complained under Article 8 of the Convention about unlawful restrictions on his correspondence and exchange of documents with his counsel.

The Government submitted that the domestic law (sections 17 and 20 of the Custody Act, and paragraph 84 of the Rules for Remand Centres) provided for censorship of correspondence between the detainee and his relatives. In 1999 and 2000, five of the applicant’s letters to his wife and mother had not been posted because they had contained either information about the criminal case that could obstruct the establishment of the truth, or insulting statements about law-enforcement authorities. On the other hand, correspondence with the prosecutor’s offices, judicial bodies and other official authorities was not subject to censorship. Such letters had been posted without delay.

Relying on copies of three of the intercepted letters addressed to his mother, the applicant indicated that they had not contained any obstructive information or insults, contrary to the Government’s submission. Had such information been present, under the domestic law the letters would not have been returned to him. The fact of censorship of his correspondence with the courts could not be denied because on 22 December 1999 the director of the remand centre had refused to post his complaint, claiming that it would have no prospect of success. Restrictions on exchange of documents, including commercial documents and forms of authority, had had no basis in the domestic law and the Government avoided commenting on that issue.

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

8.  The applicant complained under Article 13 of the Convention, read in conjunction with Article 8, that the domestic courts refused to examine his complaints concerning restrictions on family visits and correspondence.

The Government acknowledged that on 10 July 2001 the applicant’s complaint had been disallowed as not amenable to judicial review. After the Constitutional Court determined, on 21 December 2001, that these matters should be subject to judicial review, the earlier decisions should have been reviewed. The Government considered that the alleged violation had been remedied at the domestic level.

The applicant responded that on 21 December 2001 the Constitutional Court had merely confirmed its established case-law that all such decisions by the investigator or prosecutor should be amendable to a judicial review. The crux of the problem was not the absence of judicial remedies in the domestic law but rather its arbitrary interpretation by the lower courts. No decision on his complaints has been taken to date. As a consequence, he was denied an effective domestic remedy in respect of his complaint concerning restrictions on correspondence and family visits.

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

9.  The applicant complained that the refusal to issue him with a travel document had violated his right under Article 2 of Protocol No. 4 which reads as follows:

“...2.  Everyone shall be free to leave any country, including his own.

3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others...”

The Court observes that the applicant did not submit any judicial decisions concerning the merits of his complaint. It does not appear therefore that the validity of the impugned restriction has been examined by a competent Russian court.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning –

(a)  the conditions of his detention at remand centre no. IZ-99/1 (“Matrosskaya Tishina”);

(b)  an alleged absence of an effective remedy in respect of the complaint about the inhuman conditions of detention;

(c)  the conditions of transport between the remand centre and courthouse;

(d)  an alleged violation of his right to a trial within a reasonable time or to release pending trial;

(e)  an excessive length of the criminal proceedings against him;

(f)  the restrictions on family visits, correspondence and exchange of documents;

(g)  an alleged absence of an effective remedy for the complaints concerning the restrictions on family visits, correspondence and exchange of documents.

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

VLASOV v. RUSSIA DECISION


VLASOV v. RUSSIA DECISION