CASE OF ANATOLIY KUZMIN v. RUSSIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1971 and lives in Chelyabinsk. 6. On 17 January 2005 the applicant was detained on suspicion of having committed a robbery. 7. By decision of 11 March 2005 the court extended the applicant’s pre-trial detention until 22 March 2005. According to the applicant, his pretrial detention continued on 23 March 2005 since the investigator sent his criminal case to the court with a one day delay. 8. On 25 April 2005 the Tsentralniy District Court of Chelyabinsk convicted the applicant of robbery and sentenced him to nine years of imprisonment. The applicant appealed. 9. By decision of 22 July 2005 the Chelyabinsk Regional Court upheld the judgment with certain modifications. 10. The applicant subsequently lodged a request with a court to initiate supervisory review proceedings in his case. On an unspecified date the applicant’s request was granted. 11. On 22 November 2006 the Presidium of Chelyabinsk Regional Court amended the judgment and reduced the applicant’s sentence to eight years and six months of imprisonment. 12. During the trial the applicant was transported to the Tsentralniy District Court of Chelyabinsk to take part in the examination of his criminal case. 13. While waiting for hearings in the Tsentralniy District Court of Chelyabinsk the applicant was put in a convoy cell, a barred room measuring approximately 4 sq. metres with one bench. According to the applicant, he was usually kept in the convoy cell with six other accused. On 29 June 2005 as many as nine accused were kept in the convoy cell. The cell did not have a toilet and the detainees were taken to the toilet on the wardens’ orders. Though the accused leaving for a court were provided with a packed lunch, no hot meal or hot water was distributed. The accused were not allowed to smoke. 14. The applicant did not provide any detailed information as to how many times and how long he had been detained in the convoy cell. 15. He stated that the average time spent in the convoy cell by an accused was 4-5 hours a day. 16. On 30 June and 18 July 2005 the applicant complained to the court and the Head of the Court’s Convoy Service about the conditions of detention in the convoy cell. 17. By letter of 28 July 2005 the Tsentralniy District Court of Chelyabinsk replied to the applicant’s complaint. The relevant part of the letter reads as follows: “... on 29 June 2005 twenty accused were brought to the court’s convoy cells, the cells were filled up to the limit because according to the Order no. 41 ... the following categories of individuals should be detained separately: men and women, minors and adults, individuals with previous criminal record and first time accused, suspects and convicted, suspects and accused in one case. According to the Federal Law ... smoking is prohibited in all premises of the Tsentralniy District Court of Chelyabinsk, including the convoy cell.” 18. By letter of 9 August 2005 the Head of the Court’s Convoy Service replied to the applicant’s complaint. The relevant part of the letter reads as follows: “On 29 June 2005 the convoy staff was obliged to seat the accused brought to the court according to the rules in force, thus 9 individuals were put together in one of the convoy cells. According to the Federal Law ... smoking is prohibited in all premises of the Tsentralniy District Court of Chelyabinsk, including the convoy cell.” 19. On 25 July 2005 the applicant asked the prosecutor to institute criminal proceedings against the wardens of the courthouse. The prosecutor ignored the applicant’s motion and the applicant challenged his inaction in court. By decision of 18 October 2005 the Chelyabinsk Regional Court rejected the applicant’s complaint in the final instance. The relevant part of the decision reads as follows: “The court’s conclusion that there are no grounds to record the applicant’s complaint under Article 144 of the Code of Criminal Procedure (CCP) and to adopt a procedural decision under Article 145 of CCP correlates It follows from the applicant’s statement of appeal ... that he complained of the conditions of the detention in the convoy cell of the Tsentralniy District Court of Chelyabinsk, namely the smoking ban and the overcrowding of the cells. The complaint does not contain any information on committed crimes and does not require institution of criminal proceedings. These circumstances were established during the court hearing and confirmed by the record of the hearing. For the reasons mentioned above the court of first instance reasonably dismissed the applicant’s complaint.” 20. The Government submitted that the courthouse convoy premises measuring 50 sq. metres in total had four cells, 4 sq. metres each. They had adequate ventilation and lighting, the entrance was secured by metal grill doors. Each cell was equipped with one bench. The cells did not have sanitary facilities, but the convoy premises had two lavatories. The applicant had access to the toilet at any time upon request. The Government provided undated photographs and a plan of the convoy premises. 21. Relying on a certificate issued by the director of facility IZ-74/1 on 21 October 2009, the Government claimed that the applicant was brought to the Tsentralniy District Court of Chelyabinsk seven times: on 11 March, 7, 19, 22 and 25 April, 29 June and 31 August 2005. 22. The Government submitted that the documents confirming the number of detainees in the convoy cells and their time of arrival and departure were destroyed on 16 January 2009 due to expiry of the timelimit for their storage. 23. With reference to the applicable regulations, the Government submitted that on the dates of the applicant’s transfers to the District Court the applicant had received a dry ration (bread, tinned meat or fish, tea, salt, sugar and disposable tableware before 2 August 2005, and instant first and second course, sugar, tea, disposable tableware from 2 August 2005). The Government provided a copy of the invoice dated 15 June 2006 confirming the purchase of a water boiler by the District Court. 24. The Government acknowledged that on 29 June 2005 the convoy premises were crowded to the limit. According to the statement by the Deputy Head of the Convoy Service dated August 2005, there were twenty detainees in four cells in the convoy premises. The statement does not provide exact numbers for each cell.