CASE OF SHAROMOV v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
5. The applicant was born in 1972 and lives in the town of Irkutsk. 6. On 22 December 1999 the Sverdlovskiy District Court of the Irkutsk Region convicted the applicant of theft and sentenced him to five years’ imprisonment. On 11 April 2000 the Irkutsk Regional Court upheld the judgment. 7. On 7 June 2001 the applicant asked the President of the Regional Court to apply for supervisory review of the above judgments on a number of legal grounds. After leave had been granted, on 2 July 2001 the Presidium of the Regional Court upheld the conviction but reduced the applicant’s sentence to four years and six months because of an error in the calculation of the term. The applicant was not brought to the hearing. 8. The applicant made further attempts to obtain a review of his conviction and sentence. Apparently in reply to one of those applications, by a letter of 18 November 2002 the Irkutsk Regional Prosecutor’s Office notified the applicant that they had applied for supervisory review of the judgments of 22 December 1999 and 11 April 2000. It appears that the scope of the application for review was limited to an argument that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in 1992 for another offence. The applicant received that letter on 22 November 2002. 9. It appears that on 6 December 2002 the applicant submitted his observations in relation to that request. However, in the meantime, on 2 December 2002 the Presidium of the Regional Court had already examined the supervisory review application and found that the 1992 conviction had been cancelled in 1997 and should not have been taken into consideration when the trial court decided whether there had been a repeated commission of a criminal offence (recidivism). It concluded that the applicant’s acts had constituted dangerous rather than “particularly” dangerous recidivism, and changed the type of the correctional facility in which the applicant was to serve his sentence. The Presidium upheld the judgments of 22 December 1999 and 7 June 2001 in the remaining part. The applicant was not brought to that hearing. On 30 December 2002 he was told that the review had taken place, but a copy of the decision was not given to him. 10. The applicant served his sentence in correctional colony no. UK-272/25 situated in the village of Vikhorevka in the Irkutsk Region. 11. According to the applicant, on 7 September 2001 the colony administration informed the detainees that a special-purpose squad would be brought to the colony “to discipline detainees”. 12. On 21 September 2001 five officers of the special-purpose squad arrived at the colony in order to “render practical assistance in carrying out searches and prophylactic measures”. On the same day the wardens and the officers of the squad searched the applicant’s cell. The applicant objected to the search and the officers intimidated him, beat him up and damaged his personal belongings. The applicant received no medical assistance and the colony doctor refused to record his injuries. The colony administration subsequently refused to dispatch his complaints to the prosecutor. 13. According to the Government, the Director of the Regional Department for Execution of Sentences of the Ministry of Justice ordered a series of searches in detention facilities with a view to seizing unauthorised items kept by detainees in their cells which could be used for an escape. 14. Searches were carried out in the applicant’s cell on 10 and 21 September 2001. According to a report dated 10 September 2001, the use of force was accounted for by the applicant’s insults to officers. A report drawn up on 21 September 2001 indicated that the applicant had uttered insults and threats of reprisals. The Government submitted copies of reports by two officers to their superior, stating that during the search on 21 September 2001 the applicant had uttered insults and threats of reprisals to the officers. Another officer stated that the applicant had objected to the search and had swung his hands; because of his refusal to stop after a warning, his hand had been held behind his back, he “had been held in a posture preventing resistance” and had been placed in a separate room pending the search in his cell. A report drawn up by the colony medical assistant indicated that no injuries had been detected on the applicant’s body. 15. Several detainees complained to the Bratsk Prosecutor’s Office, in charge of supervising penitentiary institutions, about the events of 10 and 21 September 2001. They alleged that they and certain other detainees, including the applicant, had been beaten up by the squad members, with the tacit agreement of the colony administration. 16. On 21 January 2002 the Bratsk Penitentiary Supervising Prosecutor’s Office refused to initiate criminal proceedings against the squad members. The assistant prosecutor indicated that the squad intervention had been duly authorised by the Regional Department for Execution of Sentences on 6 and 13 September 2001 (decrees nos. 385 and 398). The squad officers wore camouflage with their ID numbers and balaclava masks. On 10 September 2001 during the search of his cell the applicant had refused to comply with orders (to stay in the corridor against the wall), and had threatened the officers with reprisals, insulting them and pushing them away. Therefore, on an order from the colony chief officer the applicant was immobilised. During another cell search on 21 September 2001 the applicant behaved in the same way and also incited other detainees to riot. In order to put a stop to his actions he was immobilised. Special means and weapons were not used. The assistant prosecutor interrogated the complainants and other detainees, some of whom however had stated that special means or weapons had been used against detainees. 17. On 28 February 2002, on a complaint by the applicant, an official of the Irkutsk Regional Department for Execution of Sentences informed him as follows. On 21 September 2001 five officers of the special-purpose squad had arrived in the colony. The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically. Following the searches, the doctor visited the detainees to find out if they had sustained any injuries. The detainees did not make any complaints or requests. 18. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6). 19. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2). 20. When using physical force, special means or weapons, the penitentiary officers must: (1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2) ensure the least possible harm to detainees and provide medical assistance; (3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 21. Rubber truncheons may be used to (1) stop assaults on officers, detainees or civilians; (2) repress mass disorders or group violations of public order by detainees, as well as to apprehend (задержание) offenders who persistently disobey or resist the officers (section 30). 22. Under Article 377 § 3 of the 1960 Code of Criminal Procedure, in force at the material time, a prosecutor took part in a hearing before a supervisory review court. A convict and his or her counsel could be summoned if the court found it necessary. If summoned, they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing. By its ruling of 14 February 2000, the Constitutional Court declared Article 377 § 3 of the Code unconstitutional in so far as it allowed a supervisory-instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor, if the latter sought annulment of the final judgment on grounds unfavourable to that person. The Constitutional Court made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place. Failing that, the above persons would be unable to state their position to the court. 23. A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety (Article 380). It could uphold, amend or quash any of the earlier judgments, vary the sentence, discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court. It could not, however, increase the sentence or re-categorise the defendant’s actions as a more serious offence (ibid.).