CASE OF MAMEDOVA v. RUSSIA
Violation of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
6. The applicant was born in 1974 and lives in Vladimir, Russia. 7. On 20 July 2004 a criminal investigation into a financial fraud allegedly committed by the applicant in conspiracy with another person, was opened. 8. On 22 July 2004 the applicant’s flat was searched and she was informed about the suspicion against her. 9. On 23 July 2004 the applicant was arrested and charged with large-scale fraud, an offence under Article 159 § 3 of the Russian Criminal Code. 10. On 24 July 2004 the Frunzenskiy District Court of Vladimir ordered the applicant’s detention on the ground that she was suspected of a serious criminal offence and that she would abscond because her accomplice had already absconded. She could also destroy evidence because some documents had not yet been seized. 11. On 26 July 2004 the applicant sent her notice of appeal. She asked for a more lenient preventive measure and petitioned the court to take into account that she was charged with a financial crime, that she had no criminal record, had a permanent place of residence and employment in Vladimir, family ties, a stable way of life and two minor children aged four and three. If she wished, she could have absconded after the search in her flat. The fact that she had not fled from justice proved that she had no such intention. She also complained about inhuman conditions of her detention and sought leave to appear before the appeal court. 12. On 10 August 2004 the Vladimir Regional Court upheld the detention order of 24 July 2004, finding that it had been lawful, sufficiently reasoned and justified. In the Regional Court’s view, the District Court had correctly assessed the applicant’s “character” and other materials presented by the prosecutor. The appeal hearing took place in the presence of the prosecutor who repeated the arguments advanced before the District Court and two counsels for the applicant. The applicant’s request for leave to appear in person was refused because her arguments were clearly set out in her notice of appeal and did not require additional clarifications. 13. On 22 September 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 November 2004. The court grounded its decision on the gravity of the charge against the applicant and on the possibility that she could abscond or obstruct justice. 14. On 27 September 2004 the applicant appealed. She complained that the decision of 22 September 2004 was not sufficiently motivated, that the court did not take into account her individual situation, that the conditions of her detention were inhuman. She asked for release on bail. 15. The appeal hearing was scheduled for 19 October 2004. On that day the hearing was adjourned because the applicant had not been brought to the courthouse. 16. On 3 November 2004 the Vladimir Regional Court found that there were no reasons to vary the preventive measure and upheld the decision of 22 September 2004. 17. On 22 November 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 December 2004, finding as follows: “... it is necessary to carry out many investigative actions with [the applicant’s] participation. [The applicant] is charged with a serious criminal offence. Besides, the prosecution submitted documents showing that, once released, [the applicant] can flee from justice and interfere with the establishment of the truth. The court sees no reasons to vary or cancel the preventive measure applied to [the applicant].” 18. On 1 December 2004 the applicant lodged a notice of appeal. On 27 December 2004 the Vladimir Regional Court upheld the decision. It found that the decision had been lawful and sufficiently reasoned. 19. On 22 December 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 January 2005 with reference to the gravity of charges and the need for a further investigation. The court also mentioned that the applicant could abscond, obstruct justice or re-offend. 20. On 27 December 2004 the applicant appealed. She referred, in particular, to inhuman conditions of her detention and asked for release on bail. 21. On 1 February 2005 the Vladimir Regional Court upheld the decision of 22 December 2004. In particular, the appeal court noted that “conditions of detention could not be taken into account when deciding on an extension of detention”. 22. On 21 January 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 March 2005. The reasoning was similar to that in the decision of 22 December 2004. 23. On 24 January 2005 the applicant lodged her points of appeal. She submitted that she had already spent six months in custody and that a further extension was permitted under the domestic law only if the case was particularly complex. The prosecution failed to show that her case was particularly complex. Nor did they prove that she intended to abscond or interfere with the establishment of the truth. The prosecution searched the applicant’s flat and office and seized all the papers; for that reason she could not destroy any evidence. The applicant asked the court to take account of her personal situation – her being a mother of two minor children with a permanent place of residence and employment in Vladimir - and inhuman conditions of her detention on remand. She complained that she had not been afforded an opportunity to study the materials submitted by the prosecution in support of their request for extension. 24. On 22 February 2005 the Vladimir Regional Court upheld the decision of 21 January 2005. The appeal court endorsed the reasoning of the first-instance court. It further held: “The opinion of [the applicant’s] lawyer that when considering the extension of detention it is necessary to take into account the conditions of detention in remand centres has no basis in the domestic law... The rules of criminal procedure (Arts. 108, 109 of the Russian Code on Criminal Procedure) do not provide for disclosure of the materials submitted by the prosecution in support of a request for extension. Nor do they require that the court should hear the opinion of the parties concerning [those materials].” 25. On 18 March 2005 the Frunzenskiy District Court ordered the extension of the applicant’s detention until 20 May 2005. It held that the applicant was charged with a serious criminal offence, that it was necessary to conduct an additional investigation and that there were no reasons to vary the preventive measure. 26. On 24 March 2005 the applicant lodged her appeal. On 19 April 2005 the Vladimir Regional Court upheld the decision. 27. On 19 May 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 June 2005. It held that the extension was “objectively justified” because of the complexity of the case, the gravity of the charge and the risk of the applicant’s absconding or her interfering with the establishment of the truth. 28. On 27 May 2005 the applicant appealed. She repeated the arguments set out in the points of appeal of 24 January 2005 and added that her father was seriously ill. On 21 June 2005 the Vladimir Regional Court rejected the appeal. 29. On 17 June 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 July 2005. It referred to the complexity of the case (the case-file comprised 13 binders), the need for a further investigation, the gravity of the charge and the risk of the applicant’s absconding or interfering with the establishment of the truth. 30. On 28 July 2005 the Vladimir Regional Court upheld the decision on appeal. 31. On 14 July 2005 the investigation was completed and the applicant was committed for trial. The applicant’s lawyers petitioned the court for her release. 32. On 19 July 2005 the Leninskiy District Court of Vladimir fixed the first hearing for 2 August 2005 and ordered that the applicant should remain in custody. 33. On 2 August 2005 the Leninskiy District Court established that the case was not ready for consideration on the merits because the applicant had not had sufficient time to study the case file and remitted the case for additional investigation. It ordered that the applicant should meanwhile remain in custody. 34. On 4 August 2005 the acting prosecutor of Vladimir varied the preventive measure. The applicant was released but ordered not to leave the town. 35. The applicant was held in detention facility no. IZ-33/1 in the Vladimir Region. 36. According to a certificate of 11 August 2005 from the facility administration, produced by the Government, the applicant was kept in four cells described as follows: cells nos. 73 and 74 (22 m², 18 bunks, 15 inmates on average), cell no. 69 (24 m², 21 bunks, 14 inmates on average) and cell no. 70 (25 m², 15 bunks, 10 inmates on average). The Government submitted that the applicant had at all times had a separate bunk. 37. The applicant did not dispute the cell measurements and the number of bunks. She disagreed, however, with the number of inmates asserted by the Government. According to her, from July 2004 to March 2005 she was held in cell no. 73 together with 15 to 22 inmates; from 2 to 4 March 2005 she was kept in cell no. 69 which accommodated 14 detainees; thereafter and until 18 May 2005 she shared cell no. 74 with up to 20 inmates; in the night of 18 May 2005 she stayed in cell no. 70 with 10 other inmates; and on 19 May 2005 she was transferred back to cell no. 74 that accommodated up to 20 detainees. In cells nos. 73 and 74 she did not always have a separate bunk. 38. The Government, relying on a certificate of 11 August 2005 from the facility administration, submitted that all cells were equipped with a lavatory pan. The pan had no cover but it was separated from the living area by a one-metre-high brick wall and an additional curtain of 1.2 metre in height. Once a week the inmates were provided with detergent (soda and chlorine). The dining table was situated three meters away from the pan. The inmates were allowed to take a shower once a week. The cells were naturally ventilated through the windows and the door vent. Fans were provided on request. There were no running hot water available but detainees were permitted to use immersion heaters. Besides, hot water for laundry and boiled drinking water was distributed. Once a week inmates were provided with clean bedding, towels and kitchenware. The cells were equipped with fluorescent lamps which functioned during day and night. 39. The applicant disagreed with the Government’s description and submitted that the sanitary conditions were unsatisfactory. The cells swarmed with insects, rats and mice. Inmates had to do their laundry indoors, creating excessive humidity in the cells. There was no artificial ventilation system. A fan was provided only in June 2005. The windows were covered with thick metal bars that blocked access to natural light. The artificial light was never switched off disturbing the applicant’s sleep. 40. The applicant contested the Government’s description of the toilet facilities. The pan was cleaned infrequently and it was very dirty and stinky. What is more, it had no cover: inmates stuck a plastic bottle in the hole in order to prevent smells from spreading. No curtains were provided and inmates had to hang a sheet which did not offer sufficient privacy. No toilet articles were distributed, save for 100 g of soda and chloride and 33 g of laundry soap per week. 41. The applicant was allowed to take a shower once a week. The entire cell was afforded fifteen minutes to shower, although there was only four shower heads. Soap was distributed after a shower. It was extremely cold in the shower room in winter. On the court days or on the days of family visits the applicant missed her chance to take shower. 42. The Government submitted that the applicant had an hour-long walk daily. 43. The applicant conceded that an hour-long walk was organised every day. However, on shower days inmates were not allowed to go outdoors. The entire cell population was often left indoors as collective punishment for a disciplinary offence committed by one inmate. The exercise yards were fenced by brick walls of 2.5 metre in height with bars on the top. They were covered with a metal roof with a one-meter gap between the roof and the top of the walls. In summer it was extremely hot and stifling inside because the sun heated the roof. Most of yards measured 9 m², up to 10 people were brought into the yard at once. 44. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the “CCrP”). 45. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 46. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 47. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 48. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9). 49. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 50. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10). 51. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to ... minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower... at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall... be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 21. (1) Every prisoner... shall have at least one hour of suitable exercise in the open air daily if the weather permits.” 52. The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate... Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.” 53. The relevant extracts from the CPT’s 10th General Report, governing conditions of detention of women [CPT/Inf (2000) 13], read as follows: “21. ...in all Council of Europe member States, women inmates represent a comparatively small minority of persons deprived of their liberty. This can render it very costly for States to make separate provision for women in custody, with the result that they are often held at a small number of locations (on occasion, far from their homes and those of any dependent children), in premises which were originally designed for (and may be shared by) male detainees. In these circumstances, particular care is required to ensure that women deprived of their liberty are held in a safe and decent custodial environment... 30. The Committee also wishes to call attention to a number of hygiene and health issues in respect of which the needs of women deprived of their liberty differ significantly from those of men. 31. The specific hygiene needs of women should be addressed in an adequate manner. Ready access to sanitary and washing facilities, safe disposal arrangements for blood-stained articles, as well as provision of hygiene items, such as sanitary towels and tampons, are of particular importance. The failure to provide such basic necessities can amount, in itself, to degrading treatment.”