CASE OF NAZAROV v. RUSSIA
Violation of Article 5 - Right to liberty and security
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1980 and lives in Dushanbe, Tajikistan. He is currently detained in remand prison IZ-33/1 in Vladimir. 6. At the material time the applicant was pursuing postgraduate studies in Vladimir, Russia. 7. On 4 April 2004 an investigator of the Department of Interior of the Vladimir Region instituted criminal proceedings against the applicant under Article 228 § 4 of the Russian Criminal Code (purchase or possession of drugs in large quantities). On the same day the applicant was arrested. 8. On 6 April 2004 the Frunzenskiy District Court of Vladimir (“the district court”) ordered the applicant's placement in custody reasoning that he had been charged with a serious crime and that, if he remained at liberty, he could have absconded or interfered with the investigation or continued his unlawful activities. 9. On 3 June 2004 the district court extended the term of the applicant's detention until 4 July 2004. 10. On 2 July 2004 the district court extended the term of the applicant's detention until 4 August 2004 for the reason that the investigators needed to take certain steps and that the applicant was charged with a serious crime and, once released, could have absconded, continued unlawful activities and impeded the investigation. 11. On 5 August 2004 the investigators transferred the file in the applicant's criminal case to the district court. 12. On 16 August 2004 the district court scheduled a hearing on 27 August 2004 and ruled that the preventive measure applied to the applicant remain unchanged. 13. On 27 August 2004 the hearing was postponed until 28 September 2004 due to the absence of witnesses. 14. On 28 September 2004 at counsel for the applicant's request the district court decided to return the case file to the prosecutor's office for further investigation. Ten days later the case was transferred to the investigators. 15. On 18 November 2004 the prosecutor's office transferred the case to the district court. On 22 November 2004 the district court received the case file. 16. On 30 November 2004 the district court scheduled a hearing for 9 December 2004 and ruled that the preventive measure remain unchanged. 17. On 8 December 2004 the hearing was postponed until 17 January 2005 upon counsel for the applicant's request. 18. On 17 January 2005 the applicant's counsel filed an application for the applicant's release pending trial, arguing that upon arrival of the case file at the district court the term of the detention had been extended in the absence of the parties to the proceedings. On the same date the application was dismissed for the reason that, having received an investigation file, a court had to schedule a hearing and decide on any preventive measure to be applied to a suspect. 19. On 24 January 2005 the applicant's counsel appealed against the ruling of 17 January 2005. 20. On 1 February 2005 the district court extended the term of the applicant's detention until 3 May 2005 for the reason that the applicant had been charged with particularly serious crimes. The applicant's counsel appealed against the decision. He invoked Article 5 § 3 of the Convention and argued, in particular, that the district court had not considered the possibility of applying other preventive measures, such as release on bail, and had not taken into account the applicant's personal circumstances. He emphasised that the applicant had a child of under one year of age, had no previous criminal record, had a permanent job and had positive references. 21. Between 7 February and 22 April 2005 the district court's hearings were postponed on several occasions. 22. On 9 March 2005 the Vladimir Regional Court (“the regional court”) dismissed the applicant's counsel's appeal and upheld the ruling of 17 January 2005. 23. On 22 March 2005 the regional court dismissed the applicant's representative's appeal and upheld the decision of 1 February 2005. 24. On 27 April 2005 the district court extended the term of the applicant's pre-trial detention until 3 August 2005 for the reason that the applicant had been charged with particularly serious crimes. 25. On 28 April 2005 the district court returned the investigation file to the prosecutor's office and noted that the preventive measure applied to the applicant should remain unchanged because the applicant had been charged with particularly serious crimes. 26. On 3 and 11 May 2005 the applicant's counsel appealed against the decisions of 27 and 28 April 2005, respectively. 27. On 19 May 2005 the district court extended the applicant's detention until 12 June 2005 because he had been charged with particularly serious crimes and, if released, could have absconded or continued criminal activities. On 27 May 2005 the applicant's counsel appealed against that decision. 28. On 10 June 2005 the district court extended the term of the detention until 12 July 2005 because the applicant had been charged with particularly serious crimes and, if released, could have absconded, impeded the investigation or continued criminal activities. On 15 June 2005 the decision was appealed against. 29. On 16 June 2005 the regional court upheld the decision of 27 April 2005 on appeal. 30. On 23 June 2005 the regional court upheld the decision of 19 May 2005 on appeal. 31. On 28 June 2005 the regional court upheld the decision of 28 April 2005 on appeal. 32. On 8 July 2005 the district court authorised the applicant's pre-trial detention until 12 August 2005, arguing that the applicant was charged with particularly serious crimes, was a national of another State, could abscond, continue criminal activities and impede the investigation. On 8 July 2005 the applicant's counsel appealed against the decision. 33. On 13 July 2005 the regional court upheld the decision of 10 June 2005 on appeal. 34. On 15 July 2005 the prosecutor's office transferred the case file to the district court. On 20 July 2005 the district court received it. 35. On 1 August 2005 the district court scheduled a hearing in the applicant's criminal case. It also noted that the preventive measure applied to the applicant should remain unchanged, without providing any reasons. 36. On 4 August 2005 the regional court upheld the decision of 8 July 2005. 37. On 8 August 2005 counsel for the applicant appealed against the decision of 1 August 2005. On 9 September 2005 the regional court dismissed the appeal. 38. Between 10 August 2005 and 9 February 2006 the district court rescheduled hearings on eight occasions for various reasons. 39. On 17 January 2006 the district court extended the term of the applicant's pre-trial detention until 20 April 2006 for the following reasons: the criminal case file was particularly complex and voluminous; the applicant had been charged with particularly serious crimes; there were no reasons to change the measure applied. The decision was taken in the presence of counsel; the applicant himself was absent. 40. On 7 March 2006 the regional court upheld the decision of 17 January 2006 on appeal. 41. Between 9 February and 13 April 2006 the district court rescheduled hearings on six occasions for various reasons. 42. On 13 April 2006 the district court sentenced the applicant to three years' imprisonment. 43. On 21 June 2006 the regional court upheld the judgment of 13 January 2006 on appeal. 44. On 6 April 2004 the applicant was placed in custody in remand prison IZ-33/1 in Vladimir (“the remand prison”). 45. While in the remand prison, the applicant was kept in different cells. The number of inmates kept in each cell varied. In particular, cell no. 17 measured approximately 28 sq. m and was equipped with ten bunk beds; eight to fifteen inmates were kept there at the same time as the applicant. Cell no. 43 measured around 28 sq. m, was equipped with eight bunk beds and housed from six to ten inmates. Cell no. 56 measured around 56 sq. m and was equipped with forty-two bunk beds; the number of inmates kept there together with the applicant varied from twenty-five to sixty-six. Cell no. 51 measured 28 sq. m and had twenty-four bunk beds; it housed eight to twenty persons. Cell no. 8 measured 3 sq. m and was equipped with three bunk beds; one to three inmates were kept there. 46. The applicant was not provided with individual bedding. On several occasions he was not allocated an individual sleeping place and the inmates had to take it in turns to sleep. 47. In virtually every cell bunk beds were attached to the walls in three rows. In each cell there was a lavatory pan placed next to the dining table and bunk beds; lavatory pans were not cleaned properly and gave off an unpleasant odour. 48. The cells were not equipped with a ventilation system. As a result, in summer it was very hot and humid inside, while in winter it was very cold. The cells were poorly lit. However, a light was switched on day and night. There were cockroaches, bugs, mice and rats in the cells. 49. The inmates were not provided with toilet paper, toothpaste or cleaning products for sinks and lavatory pans. The applicant was only allowed to have a shower once a week. 50. There were no taps with running hot water in the cells. The remand prison administration provided the inmates with one bucket of hot water per cell twice a day. The inmates were not provided with drinking water and were obliged to drink tap water. The quality of food served in the remand prison was poor. 51. The inmates were escorted for a walk in a special area covered with an iron roof. The walks only lasted about half an hour, although they should have been at least one-hour long. 52. The applicant's counsel pointed out in his applications for release lodged with district and regional courts that the applicant was being kept in poor conditions. His assertions remained unanswered. 53. Between 13 April and 25 May 2004, as well as between 4 and 18 June 2004 the applicant was kept in cell no. 17 measuring 33.4 sq. m. The number of inmates kept there at the same time as the applicant varied from six to ten. 54. Between 18 June and 2 August 2004 the applicant was kept in cell no. 43 measuring 16.58 sq. m. The number of inmates kept there at the same time as the applicant varied from six to eight. 55. Between 2 August and 30 September 2004, as well as between 20 January and 28 March 2005 the applicant was kept in cell no. 56 measuring 58.03 sq. m. The number of inmates kept there at the same time as the applicant varied from twenty-nine to forty-two. 56. Between 30 September and 24 November 2004 the applicant was kept in cell no. 51 measuring 32.48 sq. m. The number of inmates kept there at the same time as the applicant varied from sixteen to twenty-three. 57. Between 14 and 20 January 2005 the applicant was kept in cell no. 8 measuring 12.97 sq. m. The number of inmates kept there at the same time as the applicant varied from one to three. 58. Between 28 March and 4 April 2005 the applicant was kept in cell no. 50 measuring 47.35 sq. m. The number of inmates kept there at the same time as the applicant varied from twenty-four to thirty-three. 59. Between 4 April and 15 December 2005 the applicant was kept in cell no. 19 measuring 23.6 sq. m. The number of inmates kept there at the same time as the applicant varied from five to twelve. 60. Between 14 and 27 June 2006 the applicant was kept in cell no. 12 measuring 54.6 sq. m. The number of inmates kept there at the same time as the applicant varied from twelve to eighteen. 61. The applicant was at all times provided with an individual bunk bed and bedding. The bunk beds were not attached to the walls in three rows. 62. The remand prison was not overrun by rodents or insects. Every cell was equipped with the mandatory ventilation system in working condition. The applicant had free access to drinking water. He was supplied with soap. As from 2 August 2005 the applicant was also supplied with toothpaste and toilet paper. Inmates were provided with hot water twice a day and could request a more frequent supply if needed. The applicant had his own portable boiling device. He was allowed to take a shower once a week. 63. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98 of the Code of Criminal Procedure (CCP)). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (обязательство о явке) (Article 112 of the CCP). 64. 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, reoffend or obstruct the establishment of the truth (Article 97 of the CCP). 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 of the CCP). 65. 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 of the CCP). 66. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3 of the CCP). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9 of the CCP). 67. 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 up 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 of the CCP). 68. If the suspect is being kept in detention pending trial, the trial court should schedule a preliminary hearing or a trial session within fourteen days from the date of the arrival of the case file from the prosecutor (Article 227 § 3 of the CCP). 69. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 70. In their Ruling no. 4-P of 22 March 2005 the Constitutional Court of the Russian Federation examined compatibility of certain provisions of the Code of Criminal Procedure with the Constitution of the Russian Federation. The Constitutional Court found that the provisions concerning detention on remand upon transfer of a criminal case from a prosecutor to a trial court complied with the Constitution. However, their practical interpretation by the courts might have contradicted their constitutional meaning. The Ruling, in so far as relevant, reads as follows: “The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released ... These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages. Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [imposing it]... [Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the preventive measure applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term for which the preventive measure has been set. The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Proceedings, [must] ask the court to extend the period of detention.”