CASE OF ILKIN 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 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
András Sajó;Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1977 and lives in Bersenevka, Republic of Mordovia. 6. On 5 March 2009 the prosecutor’s office opened a criminal investigation in response to S.’s complaint that two policemen had extorted money from him by threatening to open a criminal case against him on charges of drug possession. 7. On 23 March 2009 the investigator received information implicating the applicant in said crime. On 30 March 2009 the investigating authorities established where the applicant was officially registered as living. 8. On 2 April 2009 the applicant was charged in absentia with kidnapping (Article 126 of the Russian Criminal Code) and extortion (Article 163 of the Russian Criminal Code). Noting that the applicant might abscond or otherwise interfere with the administration of justice, the investigator considered that the applicant should sign an undertaking not to leave his place of residence and to abstain from improper behaviour. 9. On 3 April 2009 the applicant’s name was put on the list of wanted persons. It was not elucidated in the relevant decision whether any effort had been taken on the part of the investigating authorities to establish the applicant’s whereabouts. On the same day the police informed the investigating authorities of the addresses where the applicant and his father were registered. 10. On 6 May 2010 the investigating authorities established the applicant’s temporary address. 11. On 24 June 2010 the applicant voluntarily went to see the investigator. He was questioned and released on his own recognisance. The next interview was scheduled for 1 July 2010. On that day the applicant duly appeared at the prosecutor’s office where he was arrested. When questioned, he claimed that the authorities had had no grounds to put his name on the list of wanted persons. In particular, he submitted that the investigating authorities had failed to verify his whereabouts or to issue a request for him to appear for questioning. 12. The following day, 2 July 2010, the Ostankinskiy District Court of Moscow authorised the applicant’s pre-trial detention until 1 August 2010. In particular, the court noted as follows: “... the court ... considers that, in view of the [applicant’s] character and the nature of the charges, if released, he might again abscond or otherwise interfere with the administration of justice. [The applicant] is charged with offences entailing a custodial sentence in excess of two years. As is apparent from the evidence submitted, he has absconded before and his name was put on the list of wanted persons. The court concludes that it is impossible to apply more lenient restrictions, such as release on bail. The court considers that there were grounds for the [applicant’s] arrest. It follows from the evidence submitted to the court that [the applicant] could have committed the crime he is charged with. As regards the fact that on 24 June 2009 the applicant voluntarily appeared for questioning, the court does not consider it sufficient to dismiss the [investigating authorities’] request for the [applicant] to be remanded in custody. [The applicant] did not deny that even though his name was on the list of wanted persons, he did not appear for [questioning] for two months.” 13. On 3 July 2010 the applicant lodged an appeal against the court order of 2 July 2010. He addressed it to the Moscow City Court. On an unspecified date the City Court forwarded it to the District Court for processing. According to the Government, on an unspecified date the President of the District Court returned the statement of appeal to the applicant on the grounds that it had been lodged after the deadline. The applicant received the President’s decision on 27 July 2010 and asked the District Court to renew the time allowed for appeal. 14. On 28 July 2010 the District Court extended the applicant’s pre-trial detention until 1 October 2010. The court noted as follows: “When extending the [applicant’s] pre-trial detention, the court has taken into account [his] character. Nevertheless, it does not discern any grounds to cancel or replace the preventative measure previously imposed on [the applicant] ... given that the circumstances underlying the [applicant’s] detention pending trial have not altered. [The applicant] is charged with offences entailing a custodial sentence in excess of two years. Regard being had to the seriousness of the charges and to the fact that he absconded and that his name was put on the list of wanted persons, the court is convinced that [the applicant] might abscond or otherwise interfere with the administration of justice. The court dismisses as unsubstantiated the [applicant’s] allegations that he was unfit for detention because of his state of health. There are no documents in the case file [to the contrary]. Furthermore, the court notes that all persons detained in a remand prison receive the necessary medical assistance as provided for in the applicable legislation.” 15. According to the Government, on 17 August 2010 the District Court reset the time-limit for the applicant’s appeal against the court order of 2 July 2010. 16. On 18 August 2010 the Moscow City Court upheld the decision of 28 July 2010 on appeal. 17. On 25 August 2010 the applicant’s lawyer filed an additional statement of appeal against the court order of 2 July 2010. 18. On 6 September 2010 the City Court adjourned the hearing of the applicant’s appeal against the court order of 2 July 2010 owing to his lawyer’s failure to appear. On 8 September 2010 the City Court held the hearing and upheld the decision of 2 July 2010 on appeal. 19. On 29 September 2010 the District Court further extended the applicant’s pre-trial detention until 1 December 2010 noting as follows: “... the court considers that there are no grounds justifying the lifting or changing of the restrictive measure imposed on [the applicant] ... in the court’s view, the defence’s request to release [the applicant] on bail will not have a restraining effect on the defendant as regards the possibility of him interfering with the administration of justice. Regard being had to the particular complexity of the case and to the scope of the pending investigation, the court considers the investigator’s request to extend the [applicant’s] pre-trial detention well-founded. Accordingly the court rejects the request for bail lodged by [the applicant] and his defence. Regard being had to the above and the seriousness of the charges against [the applicant], the court does not consider it possible to apply a restrictive measure other than to remand the accused in custody ... ” 20. On 25 October 2010 the City Court upheld the decision of 29 September 2010 on appeal. 21. On 29 November 2010 the District Court extended the applicant’s pre-trial detention until 1 January 2011. The court reasoned as follows: “... the grounds underlying the [applicant’s] detention pending trial have not altered. [He] is charged with a grievous offence entailing a custodial sentence in excess of two years; he previously absconded and his name was put on the list of wanted persons; he is not employed and does not have an official source of income; he used to be a policeman and has relevant knowledge and experience; he is privy to the personal data of the victim and a witness. The evidence, the circumstances and the [applicant’s] character presented to the court lead it to believe that, if released, [the applicant] might abscond, continue criminal activities, threaten the victim and the witness, put pressure on them or otherwise interfere with the investigation of the case.” 22. On 27 December 2010 the City Court upheld the decision of 29 November 2010 on appeal. 23. On 28 December 2010 the Butyrskiy District Court of Moscow fixed the trial for 12 January 2011. The applicant asked for release on bail in the amount of 500,000 Russian roubles (RUB) to be paid by his cousin. The court further extended the pre-trial detention in respect of the applicant and the other defendant until 17 June 2011, noting as follows: “Defendant M. is charged with grievous offences. [The applicant] is charged with grievous offences. Accordingly, [the court] considers that there are grounds to believe that, if released, M. and [the applicant] might abscond or otherwise interfere with the proceedings. The court does not discern any circumstances justifying lifting or changing the restriction’s] request for release on bail as unsubstantiated.” 24. On 9 February 2011 the City Court upheld the decision of 28 December 2010 on appeal. 25. On 13 April 2011 the District Court found the applicant guilty of extortion and sentenced him to four years’ imprisonment. On 25 July 2011 the City Court upheld in substance the applicant’s conviction on appeal but reduced his sentence to three years and nine months. 26. On 2 July 2010 the applicant was placed in remand prison no. IZ77/4 in Moscow. He was held there until 8 September 2011 except for one period between October and November 2010 when he underwent medical treatment in remand prison no. IZ-77/1. 27. The applicant was detained in cells nos. 913 and 914 which measured 6 metres by 5.5 metres. The cell was equipped with eight bunk beds, a table, two benches and a metal cabinet used for food storage. The toilet was located some 1.4 metres away from the living area of the cell and offered no privacy. 28. The applicant suffers from chronic gastritis and post-traumatic brain dysfunction. Because of his condition, he was eligible for a special food regime, which was allegedly not provided. His relatives sent him medicine and food while he was in detention. 29. In October-November 2011 the applicant underwent medical treatment in the hospital of remand prison no. IZ-77/1 in Moscow. 30. In response to the applicant’s complaint, the Moscow City Ombudsman made an enquiry as to the medical care provided in the remand prison. The inquiry did not confirm the applicant’s allegations that he had been refused due medical care. The applicant was informed accordingly on 12 November 2010. 31. The Government’s submissions as regards the conditions in which the applicant was transported may be summarised as follows: 32. The Government did not specify the type of compartment the applicant was placed in during the transfer to and from the court-house. According to the documents submitted, on 11 February 2011 during the journey from the remand prison to the court-house, the applicant was placed in a single compartment with another inmate. 33. The Government submitted the following information as regards the measurements and capacity of the prison vans: 34. The vans were ventilated by an opening in the door and by vents in the compartments. They were equipped with heating and lighting. They were cleaned and disinfected daily. The vans were in good working order at all times. During the journey, it was not possible for the inmates to use a toilet. They could use the toilet at the court-house, if necessary. 35. According to the photographs submitted by the Government, each compartment was equipped with two benches located along the longer walls and facing each other. There was no access to natural light. The Government also submitted excerpts from standards for service vehicles intended for the transport of suspects and defendants in criminal cases, which set forth that the seating space per person in the prison van should be at least 0.45 by 0.35 m. 36. According to the applicant, he was transported in a single-occupancy compartment only on two occasions. For the rest of the time, he was transported in a collective compartment which held up to eighteen detainees and measured 3.8 m by 2.35 m by 1.6 m. There were not enough seats for everyone and some people had to stand or sit on someone else’s lap. During the winter the vans were not heated. The ceiling and the walls were covered with ice. The floor in the van was extremely dirty. It was covered with cigarette butts, food crumbs, plastic bottles and bags of urine. The natural ventilation of the van through the hatches was insufficient. All the detainees smoked in the van and the applicant was exposed to second-hand tobacco smoke. The light was off all the time. 37. On the days of the trial, the applicant was placed in a holding cell at the court-house measuring 2.5 by 1.5 metres. It was, according to the applicant, dirty, poorly lit and unventilated. In the winter, the temperature did not exceed +140C. The cell held two or more detainees. There was no toilet in the cell. The applicant spent about eight hours in such conditions.