CASE OF MAYZIT v. RUSSIA
Violation of Art. 3;Violation of Art. 5-4;No violation of Art. 6-3-c;No violation of Art. 6-3-b;Non-pecuniary damage - financial award
Christos Rozakis
7. The applicant was born in 1953 and lives in Kaliningrad. 8. On 21 July 1998 the investigating authorities of the District Department of Internal Affairs of Kaliningrad opened a criminal investigation based on a complaint by Mr. S who alleged that the applicant had shot at his windows with a hunting rifle in revenge for an unpaid debt. Following Mr. S’s second complaint on 14 August 1998 concerning a similar incident, a second investigation was opened and joined with the first. 9. It appears that these investigations led to the applicant’s arrest on 21 September 1998. Following interrogations, he was detained on 22 September 1998 under suspicion of having committed a crime under Sections 167 § 2 and 213 § 3 of the Criminal Code of the Russian Federation which concerns intentional destruction of, or damage to, property and hooliganism and which carries a sentence of up to seven years’ imprisonment. 10. The following day, 23 September 1998, the applicant was released under his written undertaking not to leave the town as a measure of restraint. 11. On 1 December 1998 the prosecution authorities forwarded the case-file and an indictment to the Moskovskiy District Court of Kaliningrad for examination and trial. However, on 24 March 1999 the court remitted the case for further investigations. During these subsequent investigations the authorities issued, on 7 July 1999, an arrest warrant against the applicant as he had on a number of occasions failed to attend for interrogation. The applicant was arrested on 27 July 1999 and remained in detention until 1 October 1999 when the District Court ordered his release, finding the alleged risk of the applicant absconding unsubstantiated. 12. In the meantime, on 2 August 1999, the resumed investigations had been brought to an end and the case-file sent, once more, to the District Court for adjudication. However, on 30 September 1999 the District Court ordered further investigation to be carried out. In the course of this investigation, on 4 April 2000, the authorities anew ordered the applicant’s arrest and detention on the basis that the applicant had changed his residence, failed to appear for interrogations and hampered the proceedings. On 17 April 2000 an arrest warrant was issued and on 26 July 2000 the applicant was arrested and detained on remand in the Remand Centre IZ39/1 of Kaliningrad. 13. According to the report issued by the Chief Prison Directorate of the Ministry of Justice, submitted by the Government, the applicant stayed at the Remand Centre IZ-39/1 from 26 July 2000 until 7 March 2001 and from 16 May 2001 until 18 July 2001. He was kept in six different cells described as follows: cell no. 67 (21 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell no. 97 (7.8 m² of surface, 6 bunks, the sanitary conditions satisfactory); cell no. 135 (25.1 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell nos. 4/16, 4/8, 4/21 (13.8 m² of surface for each cell, 8 bunks, the sanitary conditions of each of the cells satisfactory). It appears from the report that the sanitary and technical conditions of the cells in which the applicant was held were monitored on a regular basis. 14. In accordance with Section 17 § 1.11 of the Federal Law on detention the applicant was allowed daily walks for not less than one hour. 15. According to a letter from the Head of the Medical Department of the Prison Directorate for the Kaliningrad Region, submitted by the Government, the applicant was on admission to the remand centre examined by the general practitioner, the dermatologist, the venerologist and the psychiatrist who found his health to be satisfactory. In the course of a check-up two days after his arrival, on 28 July 2000, post-tuberculosis changes in the upper lobe of the right lung were detected. During the detention the applicant did not make requests for medical assistance, no diseases were detected in the course of routine examination and his state of health was considered to be satisfactory. 16. Without disputing the size of the cells the applicant submitted that these were dirty and infected with cockroaches, bed-bugs and lice. The weekly inspection did nothing to remedy that. The cells were overcrowded, leaving about 1 square metre of surface per person. The detainees were obliged to sleep in turns and the applicant could wash only every 10 days. The windows were covered with steel shutters and let in very little light. 21. On 21 November 2000 the Criminal Chamber of the Kaliningrad Regional Court dismissed the applicant’s appeal against the ruling of the Moskovskiy District Court of Kaliningrad of 4 September 2000. 22. On 15 December 2000 the Moskovskiy District Court of Kaliningrad rejected the applicant’s application of 30 July 2000 for release pending trial. 23. On 19 August 2002 a Deputy President of the Supreme Court made an application for supervisory review of the decisions of the Moskovskiy District Court of 4 September and 15 December 2000. The Deputy President alleged that these decisions had been unlawful as far as they had effectively deprived the applicant of his right to obtain a judicial review of his detention. 24. On 16 September 2002 the Presidium of the Kaliningrad Regional Court granted the application. It set aside the decisions of the Moskovskiy District Court of 4 September and 15 December 2000 and ordered a fresh examination of the applicant’s application for release. It appears that the applicant did not pursue the case following which the proceedings were terminated. 25. On 21 August 2000, following the completion of the investigation ordered by the District Court on 30 September 1999 (see § 12 above), the public prosecutor prepared the indictment and submitted the case to the District Court for adjudication. The indictment referred to Sections 330 § 2 and 213 § 3 of the Criminal Code. On 4 September 2000 the court decided that the applicant should be given time to study the case-file and set the trial to commence on 9 October 2000. Due to the seriousness of the charges against the applicant the court appointed a defence counsel. It appears that the applicant refused the appointment of eight different defence counsels and eventually the court decided to entrust the applicant’s defence to Mr M. as the applicant had not suggested any other lawyers. During the trial, on 12 October 2000, the applicant requested that he be represented by his mother and his sister. On 13 October 2000 the court rejected the applicant’s request referring in particular to the fact that the case was complex and that therefore special legal knowledge and professional experience, which his mother and sister did not have, were required. A subsequent request of 19 November 2000 to be represented by his relatives was likewise rejected. 26. By judgment of 25 December 2000 the Moskovskiy District Court found the applicant guilty of the charges against him and sentenced him to six years’ imprisonment. The applicant appealed against the judgment, complaining also that he had not been allowed to choose his legal assistance. 27. On 27 February 2001 the Kaliningrad Regional Court upheld the judgment. On 28 February 2002 the Presidium of the Kaliningrad Regional Court lowered the sentence to four years’ imprisonment. 28. On an unspecified date the applicant filed a supervisory complaint in order to review the domestic courts’ judgment in his case. On 6 May 2004 the judicial panel on criminal cases of the Supreme Court rendered its judgment which in part found in the applicant’s favour. The Supreme Court quashed the domestic courts’ judgments in so far as they related to the conviction under Section 213 § 3 of the Criminal Code, whereas the remainder of the conviction was upheld. The applicant has been released from prison having served the sentence related to the remaining conviction. 29. Code of Criminal Procedure of 1960, in force at the material time: “... The accused may ... appeal to court against unlawfulness and groundlessness of detention...” “May be admitted as defenders: an advocate authorised by a bar office; a representative of a trade union or of another public association... Where authorized by a court decision or ruling, close relatives, legal representatives and other persons may be admitted as defenders.” “A defender’s participation is obligatory in proceedings: 1. in which a public or private prosecutor is involved...” “... When a prison administration receives a detainee’s [appeal to a court against pre-trial detention], it must pass the [appeal] to the relevant court immediately, and, at any rate, not later than 24 hours after its receipt, having informed a public prosecutor... If the appeal has been lodged via the prison administration, the prosecutor must send [the documents confirming the lawfulness and validity of the detention as a measure of restraint] to the court within 24 hours after receipt of the prison administration’s notification that the person concerned has lodged the appeal...” “... A judge must review the lawfulness of the detention ... within three days after receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint...” 30. Constitution of the Russian Federation of 1993: “Everyone has the right to professional legal aid. In cases established by law, legal aid is granted free...”