CASE OF DUDCHENKO v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Legal assistance of own choosing;Article 6 - Right to a fair trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1975 and lives in Murmansk. 6. On 23 December 2003 the Murmansk regional prosecutor’s office initiated criminal proceedings against the applicant, who was suspected of leadership of a criminal armed gang. According to the authorities, the applicant, as the leader of the gang, had planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion, in Murmansk and Moscow. 7. On 23 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone, number ...-15. The surveillance authorisation read in its entirety as follows: “[The police] are investigating [a case] against a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. [M.] and [Z.] are members of that gang. According to intelligence information, these people are planning to commit aggravated extortion from Murmansk businessmen. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-15, registered as belonging to [M.]. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-15.” 8. On 24 and 25 December 2003 the police intercepted the applicant’s conversations with an accomplice, M. 9. On 25 December 2003 two of the applicant’s accomplices, M. and S., were arrested. The applicant went into hiding. 10. On the same day, 25 December 2003, at the applicant’s request his brother retained G. as the applicant’s legal representative. The legal services agreement stated that G. was to consult and defend the applicant while his name was on the police’s wanted persons list in connection with charges that were not yet known to him. If the applicant were to be arrested by the police, an additional agreement would be signed between G. and the applicant. There is no evidence that the police or the investigator were informed about that agreement. 11. On 26 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone number ...-49. The surveillance authorisation read in its entirety as follows: “[The police] have intelligence information about a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-49. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-49.” 12. On 26 and 27 December 2003 the police intercepted conversations between the applicant and G. 13. On 27 December 2003 the applicant was arrested. 14. On 28 December 2003 G. informed the investigator that he was the applicant’s defence counsel by virtue of instruction no. 1062 of the Murmansk Regional Bar Association (“the Bar Association”). He was formally admitted (допущен) as counsel for the applicant. 15. On 5 January 2004 the applicant was charged with aggravated robbery, assault, kidnapping and extortion, committed by an organised criminal group. S. and M. were also charged with the same criminal offences. 16. At the beginning of August 2004 the investigator informed G. that his presence was required during investigative procedures involving the applicant. On 23 August 2004 the investigator was informed by the Bar Association that G. was on annual leave until 4 October 2004. 17. On 24 August 2004 the investigator appointed legal aid counsel for the applicant, noting that he had refused to choose replacement counsel and had insisted on being represented by G. 18. On 30 August 2004 the investigator decided to remove G. as counsel for the applicant, finding that it was necessary to question him about his telephone conversations with the applicant on 26 and 27 December 2003. He noted that at the time, G. had not yet been the applicant’s counsel. However, well aware that the applicant had committed serious criminal offences, G. had advised him what to do. In particular, he had told the applicant that money was needed, which could possibly mean that G. had intended to bribe a police official. He had also informed him about the course of the criminal proceedings, which had become known to him as at the time he had been representing the applicant’s accomplices, S. and M. When the police had tried to force the applicant’s door, the applicant had summoned G., who had said that he could not come and offered to send another lawyer. He had then advised the applicant to try to avoid arrest and, if that was not possible, to destroy his telephone and the SIM card, and to remain silent when questioned. In the investigator’s opinion, by giving such advice, G. had been trying to hide his connections with the applicant and his knowledge of the criminal offences committed by him. Given that at the material time G. had not been formally admitted as the applicant’s counsel, he should be considered as having advised him in his capacity as a simple citizen. He should therefore be called as a witness in the criminal proceedings against the applicant. 19. On 11 October 2004 the criminal case against the applicant and his accomplices was transferred to the Murmansk Regional Court for trial. The criminal case file comprised twelve volumes; five criminal cases were joined into one criminal case against the applicant and his accomplices. 20. A preliminary hearing was held on 21 and 22 October 2004. 21. The trial started on 3 November 2004. The applicant asked the court for permission for his brother, a civil lawyer working at a company which sold car spare parts, to act as his defence counsel. The court rejected his request, stating that the applicant’s brother was not qualified to participate as defence counsel in criminal proceedings, that he did not have the relevant practical experience, and that the applicant was already represented by legal aid counsel. 22. On 4 November 2004 the applicant requested that legal aid counsel assigned to his case be removed for failure to provide adequate legal assistance. The court rejected his request. The applicant then requested that AM. be admitted as his defence counsel instead of the legal aid lawyer. The judge granted that request and AM. represented the applicant throughout the remainder of the criminal proceedings. The trial was adjourned until 15 November 2004 to let AM. study the case file. 23. On 15 November 2004 the hearing was again postponed, until 22 November 2004, owing to the failure of one of the co-accused to appear due to illness. 24. Further hearings were held between 22 November and 9 December 2004. 25. On 22 November 2004 the applicant challenged the admissibility as evidence of transcripts of his telephone conversations with G. on 26 and 27 December 2003. He argued that G. had been his counsel as from 25 December 2003, as confirmed by the legal services agreement of that date and by relevant payment invoices. The conversations in question were therefore protected by legal professional privilege and their transcripts could not be used in evidence in criminal proceedings. 26. On 30 November 2004 the Murmansk Regional Court found that the legal services agreement of 25 December 2003 stated that G. was to provide the applicant with legal assistance in the framework of criminal proceedings, without clearly identifying the criminal proceedings to which it related. The investigator had not been informed about that agreement. G. had not been formally admitted as the applicant’s counsel in the present criminal proceedings until 28 December 2003 when he had shown the investigator the relevant instruction by the Bar Association. The Regional Court found it relevant that during the conversations intercepted by the police, G. had advised the applicant to remain in hiding and to destroy the evidence. Moreover, having been present, as their counsel, at S.’s and M.’s questioning after their arrest, G. had informed the applicant about their statements to the investigator. When summoned by the applicant to assist him at the time of his arrest, he had refused to come and had offered to send another lawyer. That gave reasons to doubt that G. had been representing the applicant at the time in the present criminal proceedings. The investigator had subsequently removed G. as counsel for the applicant. G. had not, however, been called to testify against the applicant in breach of legal professional privilege. Given that the applicant’s conversations with G. intercepted by the police contained information about the applicant’s criminal activities, they were not subject to legal professional privilege and their transcripts were admissible as evidence. 27. On 9 December 2004 the court ordered a graphological expert report and for that reason adjourned the trial until 5 April 2005. 28. On 4 April 2005 the applicant lodged an action before the Oktyabrskiy District Court of Murmansk, challenging the investigator’s decision of 30 August 2004 to remove G. as his counsel. On 6 June 2005 the Oktyabrskiy District Court dismissed that complaint as inadmissible, finding that it could not be examined once the investigation had been completed. The applicant could raise the complaint before the trial court. 29. Meanwhile, further hearings were held on 5, 25 and 27 April and 5 and 12 May 2005. 30. On 19 May 2005 the court ordered a complex psychological expert examination of one of the co-accused and adjourned the trial pending the expert examination report. A further complex psychological examination was ordered on 4 July 2005 and the trial was again adjourned until 7 October 2005. 31. On 7 October 2005 the trial was adjourned because the court ordered that two prosecution witnesses who had testified against S. and who were detained in Moscow be transported to Murmansk for a crossexamination. 32. The trial remained adjourned between 7 October 2005 and 6 March 2006 while awaiting the transfer of the prosecution witnesses, who at the time were on trial in a criminal case in Moscow. They were transferred to Murmansk on 3 March 2006, after their conviction of 7 October 2005 had been upheld on appeal on 26 December 2005. 33. On 29 December 2005 the applicant challenged the admissibility as evidence of the transcripts of his telephone conversations with M. on 24 and 25 December 2003 and with G. on 26 and 27 December 2003. He claimed, in particular, that the transcripts had been obtained unlawfully. 34. The trial was resumed on 6 March 2006. Hearings were held on 16 March, 6, 7, 13 and 20 April 2006. 35. During the trial the court examined numerous pieces of evidence, including three expert reports and the statements of six victims and twentyfour witnesses from Murmansk and Moscow. 36. On 12 May 2006 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment. It relied on the transcripts of the applicant’s telephone conversations with G. and M., among other evidence, observing that the interception of the applicant’s telephone communications had been authorised by a court. Having analysed the transcripts of the applicant’s telephone conversations with G., it held as follows: “The lawyer had not been formally admitted to provide legal assistance to [the applicant] at the time [when the interception had taken place]. His actions were considered by the investigator to be unlawful and served as a basis for the decision to remove [G.] as counsel for [the applicant] and for considering the question of opening criminal proceedings [against G.]. The court does not have any reason to believe that the information obtained as a result of [intercepting the applicant’s] telephone communications with [G.] cannot be used as evidence, given that the information in question has not become known to [G.] as a result of providing legal assistance to [the applicant].” 37. The applicant appealed against the conviction, claiming that the Regional Court had erred in its assessment of the evidence, that the transcripts of his telephone conversations with his co-defendant M. and counsel G. had been unlawfully used as evidence in the criminal proceedings, that G. had been unlawfully removed as counsel from his case, and that the authorities had refused to allow his brother to act as his legal representative. 38. On 18 December 2006 the Supreme Court of the Russian Federation upheld the conviction. It held, in particular, that the transcripts of the applicant’s telephone conversations with M. and G. had been correctly admitted as evidence. It further observed that the applicant’s allegations of violations of his right to defence during the preliminary investigation had been examined by the first-instance court and had been rejected as unsubstantiated. 39. The applicant was arrested on 27 December 2003. 40. On 29 December 2003 the Murmansk Regional Court remanded the applicant in custody. It held that he was suspected of particularly serious offences, did not have a permanent job, and that his assertions that he owned a family business were unconvincing. There were therefore sufficient reasons to believe that he might abscond, obstruct the course of justice, and continue his criminal activities. 41. On 24 February and 18 June 2004 the Regional Court ordered extensions of the applicant’s detention, citing the need for further investigation, the gravity of the charges and the risks of the applicant absconding, putting pressure on witnesses and obstructing the course of justice. There were no factors relating to the applicant’s character, state of health, family or other circumstances which would warrant release. The applicant did not appeal against those extension orders. 42. On 11 October 2004 the criminal case file was transferred to the Regional Court for trial. On 22 October 2004 the Regional Court ordered the applicant’s and his co-defendants’ detention during trial, referring to the gravity of the charges and the lack of permanent employment “at the time of the commission of the crimes”. It considered that the grounds which had served as the basis for the preventive measure remained valid. The applicant did not appeal. 43. On 5 April, 4 July, 7 October and 29 December 2005 and 7 April 2006 the Regional Court extended the applicant’s and his codefendants’ detention, finding that the grounds which had served as the basis for the preventive measure remained valid and that there were therefore no reasons to change it. The trial could not proceed for objective reasons as it was necessary to wait for the results of a psychological expert examination of S. and for the transfer for questioning of two prosecution witnesses against S. 44. The applicant appealed against the above extension orders to the Supreme Court. He submitted that he had been permanently residing in Murmansk, that he had been working in the family business, that he had no previous convictions and that he had no intention of absconding from the authorities. The authorities had failed to substantiate their allegations that he might abscond or continue with his criminal activity. As regards the risk that he might put pressure on witnesses, it was no longer relevant as all the witnesses had already been questioned by the trial court. According to the applicant, the extension of his detention had been based solely on the gravity of the charges against him. The trial had been adjourned for reasons which were not related to his personal situation, but in order to carry out expert psychological examinations of one of the co-accused and to ensure the transfer from Moscow of two prosecution witnesses who were to give evidence against that same co-accused. He asked to be released on bail or on his father’s personal guarantee. 45. On 11 August, 9 November and 15 December 2005 and 30 March 2006 the Supreme Court upheld the above extension orders on appeal, referring to the gravity of the charges and the risks of the applicant absconding or putting pressure on witnesses. The fact that the witnesses had already been questioned was irrelevant because the applicant might still put pressure on them or otherwise obstruct the trial. 46. The applicant was held as follows: in remand prison no. IZ-51/1 (SIZO-1) in Murmansk from 30 December 2003 to 21 May 2006; in correctional facility no. IK-16 in Murmashi, Murmansk Region, in a special wing with the material conditions of detention of a remand prison (ПФРСИ – помещение, функционирующее в режиме следственного изолятора) from 21 May to 9 October 2006; in remand prison no. IZ-35/2 in Vologda from 12 to 17 October 2006; and in remand prison no. IZ-77/3 in Moscow from 18 October 2006 to 24 January 2007. 47. The Government submitted that it was impossible to provide original documentation concerning the conditions of the applicant’s detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk because all the official records had been destroyed after the expiry of the statutory period for their storage. In respect of that detention facility they submitted only statements and reports prepared by the prison authorities in 2010. They also submitted copies of the prison population register for the entire periods of the applicant’s detention in correctional facility no. IK-16 in Murmashi and in remand prison no. IZ-35/2 in Vologda, and selected pages from the prison population register for the period of detention in remand prison no. IZ-77/3 in Moscow. 48. The Government submitted the following information about the applicant’s detention, which was based on the above-mentioned documents: 49. The Government asserted that in all the cells where the applicant had been detained between 2003 and 2007, the number of inmates had not exceeded the number of beds and that at all times while in detention the applicant had been provided with an individual sleeping place. At the same time, the Government submitted as follows: “... during the applicant’s detention the sanitary norm for space per inmate was not always complied with. However, it happened only occasionally ... and the prosecutor’s office demanded that these infractions be eliminated ...” 50. Relying on the statements and reports prepared by the prison authorities in 2010, the Government further submitted that the applicant had been provided with bed sheets and cutlery. The cells were cleaned daily by the inmates and the administration of the penal institutions carried out a sanitary treatment of the premises every month. 51. All cells were equipped with wash basins supplying cold water; hot water was available for personal and household needs. In addition, the inmates were allowed to use their own kettles and water heaters. 52. At all times in all the remand prisons, the applicant and the other inmates were allowed to take a fifteen-minute shower once a week; their linen was changed weekly. 53. The applicant and other inmates were allowed to take one hour’s daily exercise in specially equipped yards. 54. According to the applicant, remand prison no. IZ-51/1 (SIZO-1) in Murmansk had been severely overcrowded and the space available to him had been below the domestic standards. The applicant contested the accuracy of the data submitted by the Government about the designated number of bunk beds within the cells. For instance, in cell no. 423 the actual number of bunk beds had been eight and not three as submitted by the Government, as could be seen from the photographs he had submitted to the Court. Cell no. 406 had seven sleeping bunks and housed up to nine inmates. 55. In reply to the applicant’s complaints about poor conditions of detention, the Murmansk regional prosecutor’s office stated, on 14 November 2005, as follows: “... the applicant’s complaints ... that the conditions of detention in SIZO-1 were not fully compatible with the sanitary regulations prescribed by the Federal Law on pretrial detention ... that the minimum individual space prescribed by the Law (4 sq. m per person) was not always complied with, that the premises needed repair, that the walls in some of the cells were stained with mould and crumbling, that the plumbing was often out of order, that not all the cells were equipped with a sufficient number of shelves and TV sets, that broken glass in the windows was not replaced promptly and that there were no refrigerators – [all these complaints] reflect the reality. These deficiencies were noted by the prosecutor’s office during their inspection of SIZO-1.” 56. On 25 April 2006 the Murmansk regional prosecutor’s office stated: “... in 2005-06 the number of detainees in SIZO-1 frequently exceeded the prescribed limits. For these reasons it was not always possible to comply with the sanitary regulations (4 sq. m per inmate). For the same reasons the requirements concerning the separate detention of different categories of detainees were sometimes not complied with ...” 57. As regards correctional facility no. IK-16 in Murmashi, the applicant stated that during his stay there he had been detained in inadequate conditions. The cells had been overcrowded. The space available to him throughout the detention period had been below the domestic standards. In particular, he had shared a cell measuring 20 sq. m with five other detainees. 58. On 28 September 2006 the applicant complained to the Murmansk Regional Department for the Execution of Sentences of inadequate conditions of detention in IK-16. In particular, he complained of poor nutrition, overcrowding, a lack of newspapers and television sets, and of the authorities’ refusal to make copies of documents at inmates’ requests. He received no reply. 59. Furthermore, as regards remand prison no. IZ-35/2 in Vologda, the applicant stated that the quality of the food in the prison had been extremely poor. He had been detained with thirty-six other detainees in a cell measuring 50 sq. m. The cell had been infested with cockroaches, bedbugs and rats. The detainees had slept on bunk beds. 60. Lastly, as regards remand prison no. IZ-77/3 in Moscow, according to the applicant, he had been held in cell 434, which measured 13 sq. m, with seven other detainees. The inmates had slept on bunk beds. There had been a table measuring 1 m by 0.3 m but no benches or chairs to sit on. The cell had been swarming with insects. The inmates had been allowed to take exercise only in groups. 61. From 9 to 12 October 2006 the applicant was transferred by train from Murmansk to Vologda. He was given no food. He received his first meal on 13 October 2006. 62. On 17 and 18 October 2006 the applicant was transferred by train from Vologda to Moscow. 63. From 24 January to 9 February 2007, on the way from Moscow to Murmansk, between St Petersburg and Murmansk, the applicant was transported in cramped conditions in a compartment with up to sixteen other inmates, some of whom were suffering from tuberculosis. 64. As regards the conditions of the applicant’s transportation between Murmansk and Vologda from 9 to 12 October 2006, the applicant was transported in a compartment with other inmates, none of whom were suffering from tuberculosis. He was transferred from Vologda railway station to the local remand prison IZ35/2 in a special vehicle separately from other inmates. 65. When the applicant was transferred from Vologda railway station to Moscow on 17 and 18 October 2006, he was not transported with inmates who were suffering from tuberculosis. 66. When the applicant was transferred from Moscow to Murmansk between 24 January and 9 February 2007, he was transported first alone in the railway compartment, then from St Petersburg onwards he was transported with other inmates, none of whom were suffering from tuberculosis. 67. During the transfers the applicant was duly provided with dry food rations; he was given permission to use hot water and the toilet. 68. The applicant did not lodge any complaints about the conditions of his transportation between Murmansk and Moscow. He did not apply for medical assistance, nor did he complain about the state of his health. 69. In their submission the Government neither specified the number of inmates transported with the applicant, nor the size of the compartments in which they had travelled. Nor did they submit any copies of documents regarding that part of the applicant’s complaints, including the distribution of dry rations for the trip.