CASE OF KOLUNOV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1983 and lives in Moscow. 6. The applicant is a member of the National Bolsheviks Party. 7. On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor. 8. The members of the group asked for a meeting with the President, the deputy head of the President’s administration and the President’s economic adviser. They handed out leaflets through the windows, featuring a printed letter to the President which listed ten ways in which he had failed to comply with the Constitution and which called for his resignation. 9. The intruders stayed in the office for an hour and a half until the police broke down the locked door and arrested them. They did not offer any resistance to the authorities. 10. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on the following grounds: “[The applicant] is suspected of having committed several offences, one of which is particularly grievous. If at liberty, he may continue his criminal activities, interfere with the investigation or put pressure on witnesses. He might abscond or prevent the investigation of the truth.” 11. On 21 December 2004 the applicant was charged with the attempted violent overthrow of State power (Article 278 of the Criminal Code) and the intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 12. On 7 February 2005, referring to the gravity of the charges against the applicant, the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 April 2005. 13. On 16 February 2005 the applicant’s charge was amended to that of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code. 14. On 14 April 2005 the District Court granted the prosecution’s request for an extension of the applicant’s detention until 14 July 2005, for the following reasons: “... the defendants and their counsel have started to study the case file. Given the file size (12 volumes) and the number of persons studying it (39 defendants and their counsel), the court considers that there are sufficient reasons to extend [the applicant’s] detention for three months, because he has not yet finished studying the case file while his counsel has not yet started. Notwithstanding the fact that [the applicant] has a registered place of residence in Moscow, the court, taking into account the gravity of charges and the fact that the grounds justifying his placement into custody still persist today, sees no reason to apply a more lenient preventive measure.” 15. On 19 May 2005 the Moscow City Court upheld the decision of 14 April 2005 on appeal, finding that it had been lawful, sufficiently reasoned and justified. 16. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial. On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and decided that all the defendants should meanwhile remain in custody. 17. On 30 June 2005 the District Court held a preliminary hearing. It rejected the defendants’ requests for release taking into account their characters, age, state of health, family situation and stability of lifestyle. However, it found, referring to the gravity of the charges, that “the grounds on which the preventive measure [had been] previously imposed, still exist[ed]” and that “the case file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all the defendants should remain in custody pending trial. 18. On an unspecified date in July 2005 the applicant and his codefendants lodged applications for release. The District Court rejected these requests on 27 July 2005, finding that their detention was lawful and justified. On 5 October 2005 the City Court upheld the decision of 27 July 2005 on appeal. 19. On 10 August 2005 the applicant and his co-defendants lodged new applications for release. On the same day the District Court rejected the requests. It held: “The court takes into account the defence’s argument that an individual approach to each defendant’s situation is essential when deciding on the preventive measure. Examining the grounds on which ... the court ordered and extended the detention period in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered on their behalf by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct the course of justice in some other way ... In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant ...” 20. On 2 November 2005 the City Court upheld the decision of 10 August 2005 on appeal. 21. On 16 November 2005 the District Court extended the detention in respect of all the defendants, including the applicant, until 7 March 2006. The court stated as follows: “According to the materials in the criminal case file, the circumstances taken into account by the court when it authorised the pre-trial detention period and its extension for all the defendants still persist. Regard being had to the above and taking into account the state of health, family situation, age, employment and character of all the defendants, the court concludes that, if at liberty, each of them might abscond or otherwise interfere with the criminal proceedings.” 22. On 8 December 2005 the District Court found the applicant and his co-defendants guilty of participation in mass disorder. It gave the applicant a three-year suspended sentence and then released the applicant on three years’ probation. 23. The applicant was held in remand prison no. IZ-77/3 in Moscow from 24 December 2004 to 8 December 2005. According to his submission, he was detained in a cell together with eleven other inmates. The cell was overcrowded. The light was never turned off which disturbed the applicant’s sleep. The cell was not ventilated. The lavatory pan was separated from the living area by a makeshift partition – one metre in height. The person using the toilet was in view of other inmates. The applicant was allowed to take a shower for ten minutes once a week and a daily walk for about an hour per day. Inmates were not given enough food and medicine, save for aspirin and other analgesics. The applicant claimed that he suffered from epilepsy but received no treatment. 24. According to the Government, the applicant was detained in cells nos. 218, 219, 413, 508, 526 and 611. At all times he was provided with his own bed, bedding and cutlery. Not only did the cells where he was held provide access to daylight, they were equipped with artificial lighting as well. The ventilation system was in good working order. In addition the vents in the windows permitted access to fresh air. All cells had a sink, a water tap and a toilet which was separated by a partition, one metre in height, from the living area. The applicant could take at least one shower per week for fifteen minutes. During the day the lighting was on from 6 a.m. to 10 p.m., with lower-voltage bulbs being constantly in use to light the lavatory at night. The applicant was provided with three meals a day and unlimited access to medical care. 25. For a summary of the relevant domestic law provisions governing conditions and length of pre-trial detention, see the cases of Dolgova v. Russia, no. 11886/05, §§ 26-31, 2 March 2006, and Lind v. Russia, no. 25664/05, §§ 47-52, 6 December 2007.