CASE OF BORIS POPOV v. RUSSIA
Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1975 and is serving a sentence of imprisonment in the Tomsk Region. 7. During the night of 4 to 5 November 2001 there was a theft from an administrative building in the village of Pospelikha, Altay Region. A fax machine, an electric kettle, a wristwatch and a desk clock were stolen. On 6 November 2001 the authorities opened a criminal inquiry and arrested a Mr A. During his interview, from 6 to 6.30 p.m., he admitted the theft and named the applicant as his accomplice. A search was carried out in the applicant's house; several compact discs, a radio receiver and a telephone set were seized. 8. It appears that at about 6 p.m. on the same evening the applicant was arrested at his home by two officers from the Pospelikha district police station in the Altay Region. The applicant was taken to the police station and placed in the temporary detention centre. At an unspecified time on the same day Mr S., an investigator with the Pospelikha district police, notified the Pospelikha district prosecutor of the applicant's arrest. The notification had no reference number and no indication of the hour. 9. According to the applicant, at 11 a.m. on 7 November 2001 he swallowed an open safety pin in order to protest against his allegedly unlawful arrest. He was taken to a public hospital for an X-ray examination, which confirmed the presence of a safety pin in his stomach. At about noon the applicant was brought back to the police station. Policemen stripped him down to his underwear and handcuffed both his hands to the bars in the lobby of the detention centre. At 7 p.m. he was given a chair. During the night he was allowed to sleep on the floor. He remained handcuffed, was given some water and tea but no food. The applicant was interviewed by an investigator on the morning of 8 November 2001. At 2 p.m. he felt sick and was examined by paramedics. At 5 p.m. the applicant was released. 10. According to the Government, at 8 p.m. on 7 November 2001 the applicant swallowed an open safety pin. After he had been examined at the hospital, he was brought back to the police station. He threatened to slit his veins. He was taken out of the cell, inspected and handcuffed with one hand to metal bars. He remained under the supervision of the on-duty officer. At night the applicant was given a mattress and bedding. The handcuffs were regularly moved from one hand to the other. The applicant was taken to a toilet, at his request, and was given water and tea. On the morning of 8 November 2001 investigator S. interviewed the applicant. At or around 1 p.m. the applicant alleged that he felt sick because he had swallowed a razor blade. He was examined by paramedics, who found that the complaint was false. 11. On 9 November 2001 Mr A. was interviewed again and stated that he had committed the theft alone. It does not appear that the applicant was subsequently prosecuted for the theft committed during the night of 4 to 5 November 2001. It appears, however, that he was sentenced to a prison term in relation to other criminal offences. 12. As can be seen from an undated certificate issued by the Prosecutor's Office of the Pospelikha District, the arrested persons' register and the arrest notification register for 2001 did not contain any information that the applicant had been arrested between 6 and 8 November 2001 under Article 122 of the RSFSR Code of Criminal Procedure. 13. In February 2003 the applicant sued the Pospelikha district police station for compensation in respect of non-pecuniary damage caused by his allegedly unlawful detention and handcuffing on 7 and 8 November 2001. By a judgment of 3 April 2003 the Pospelikha District Court dismissed his claim. The applicant was neither present nor represented at the hearing. On 23 July 2003 the Altay Regional Court quashed the judgment on the ground that the applicant's attendance had not been secured, and remitted the matter for a fresh examination. The Ministry of Finance joined the resumed proceedings as a co-defendant. 14. By a judgment of 22 September 2003 the District Court dismissed the applicant's claim. On the basis of testimony by investigator S., it found that the applicant had been lawfully detained from 6 to 8 November 2001 with a view to dispelling or confirming the suspicion of his involvement in the theft. The District Court further found that the use of handcuffs had also been lawful and justified. In so finding, it took statements from witnesses: another detainee, Mr Z., and two on-duty officers, Po. and Mr Pu. They stated that the applicant had been verbally abusive and had shouted, banged at the door, incited to mass disorder and threatened to slit his veins with a razor blade. He had been handcuffed to prevent mass disorder and self-harm. While handcuffed, he had been given food and drink and a mattress to sleep on during the night, and had also been allowed to use the toilet. The District Court found that the use of handcuffs from 8 p.m. on 7 November to 1 p.m. on 8 November 2001 had been compatible with the requirements of section 45 of the Custody Act for the prevention of mass disorder or attempts to inflict self-harm (see paragraph 41 below). In the District Court's view, the application of handcuffs had not impaired the applicant's rights, inflicted physical suffering or diminished his honour or dignity. 15. On 10 December 2003 the Altay Regional Court upheld the judgment. It noted that the applicant's deprivation of liberty had been in compliance with Russian law and the Convention because he had been lawfully arrested for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense. 16. In the meantime, in September 2003 the applicant had asked the Altay regional prosecutor to open a criminal case against the police officers who had been allegedly responsible for his unlawful detention and handcuffing. 17. On 29 September 2003 Mr M., an investigator with the Pospelikha district prosecutor's office, refused to institute criminal proceedings. He noted that the Pospelikha district police station possessed no documents or records concerning the applicant's arrest in November 2001. He took a statement from investigator S., who denied that he had ever detained the applicant as a suspect. On the strength of that evidence the investigator concluded that the applicant had not been arrested or detained at the police station from 6 to 8 November 2001. 18. On 23 October 2003 the Pospelikha district prosecutor annulled Mr M.'s decision and asked his deputy, Mr Ch., to resume the inquiry. 19. By a decision of 4 November 2003 Ch. refused to institute criminal proceedings in respect of the applicant's allegations. He had not interviewed the applicant in person but instead quoted his statements to the District Court. He had interviewed investigator S., who had retracted his earlier statement and stated that he had apprehended the applicant as a suspect. A record of the arrest had been properly compiled, but after the applicant's release, he had taken it away from the police station with a view to putting it in the file but had subsequently mislaid it. Mr Ch. also interviewed the director and deputy director of the temporary detention centre, who claimed that the record of the arrest had been properly drafted and that the handcuffs had been applied to prevent self-harm. Two on-duty officers testified in the same vein. Relying on those statements and the findings of the District Court in the civil proceedings (see paragraph 14 above), Mr Ch. determined that the use of handcuffs had been lawful and justified. 20. By a judgment of 11 February 2004 the District Court upheld Ch.'s decision by way of judicial review. It found that the inquiry had been thorough and complete and that sufficient evidence of the lawfulness and reasonableness of the applicant's arrest and handcuffing had been collected. The District Court took note of the certificate from the head of the district police station showing that the record of the arrest and the detention registers for November 2001 had been destroyed after one year's storage. The District Court held in that connection that the “documents had been wrongly destroyed before the expiry of the correct retention period” but that there was no proof of malice on the part of the public officials. In the District Court's view, Ch. had not been required to hear the applicant in person because he had set out his allegations in sufficient detail. Nor had he been required to examine further witnesses, including other detainees, because the statements by police officers had been sufficient. Lastly, the District Court dismissed as insignificant the applicant's argument that the use of handcuffs had not been recorded in any reports, as required by domestic law. 21. On 30 September 2004 the Regional Court upheld the judgment. 22. By a letter of 7 September 2007 the Court informed the applicant that the present application had been communicated to the respondent Government. This letter was received at Rubtsovsk remand centre no. 22/4 on 29 October 2007 and was handed over to the applicant on an unspecified date. By a letter of 28 November 2007 the applicant was invited to submit before 30 January 2008 his comments on the Government's observations. This letter was received at the detention facility on 18 December 2007 and was handed over to him on or around 28 January 2008. By a letter of 8 January 2008 the applicant was provided with a copy of the English translation of the Government's observations. This letter was received at the detention facility on 17 January 2008 and was handed over to the applicant on 11 February 2008. The delays were due to the applicant's transfers between several detention facilities. All three letters were monitored and stamped by the prison staff. 23. It appears that on 20 May 2008 the detention facility dispatched a letter from the applicant to the Court. However, the letter was returned to the detention facility by the Russian Postal Service with a requirement to add stamp value and remove sellotape from the envelope. In October 2008 the Tayga Town Court of the Kemerovo Region held that the refusal to dispatch the letter for lack of funds was unlawful. 24. On 29 July, 28 August and 11 September 2009 the applicant's representative brought a number of complaints before the Court in relation to various restrictions concerning the correspondence between the applicant and the Court, as well as between the applicant and his representative before the Court (see below). 25. As can be seen from a certificate issued by the administration of colony no. 2 in the Tomsk Region, submitted by the Government, between August 2007 and September 2009 the applicant submitted a number of letters for dispatch to the Court. The register of outgoing correspondence contained various entries such as “complaint”, “petition”, “additional complaint”, “request concerning the course of proceedings”, “request concerning receipt of the previous letter”, “request concerning the list of previously submitted documents”, “complaint concerning a violation of his rights”. It appears that the entries for the letters submitted for dispatch in 2009 were marked as “sealed envelope” without any further indication of the contents. 26. On 29 January 2008 the International Protection Centre, a non-governmental organisation in Moscow, received a letter from the applicant enclosing an authority form for Ms Misakyan to represent him in the proceedings before the Court. 27. On 2 and 11 September, 16 October and 11 December 2008 and 12 March 2009 the applicant sent letters to Ms Misakyan at the address of the International Protection Centre. The letters were accompanied by covering notes by the facility administration, summarising their contents. On 6 June 2009 Ms Misakyan sent a letter to the applicant, who was then being held in prison hospital no. 1 in the Tomsk Region. The letter was monitored and stamped by the facility administration on 15 June 2009; the stamp was placed directly above the text of the letter. In the meantime, on 8 June 2009 the International Protection Centre had received a letter from the applicant, the envelope of which carries a stamp indicating that the letter had been inspected by a correspondence officer. 28. As can be seen from a certificate issued by the administration of colony no. 2 in the Tomsk Region, produced by the Government, in 2008 and 2009 the applicant submitted a number of letters for dispatch to Ms Misakyan at the address of the International Protection Centre. The register of outgoing correspondence contained various entries such as “request for legal assistance”, “complaint concerning the proceedings before the European Court”, “complaint”, “ letter – replies to questions from the European Court”, “request concerning legal assistance”, “request concerning samples of documents”, “request concerning translation”, and “personal letter”. 29. On 14 September 2009 the applicant's representative wrote to the administration of Tomsk prison no. 2 indicating that she was representing the applicant before the Court and that her correspondence with him should be treated as privileged and confidential. 30. On 5 October 2009 the applicant's representative sent a letter to the applicant by registered mail, indicating on the envelope “from advocate Misakyan”. This letter was returned to her with a note “not required because of the time-limit since 8 December 2009”. 31. In November and December 2009 the applicant submitted for dispatch three letters addressed to Ms Misakyan. The administration of the detention facilities dispatched these letters with notes indicating the number of pages in the correspondence. One of the notes was addressed to the International Protection Centre; the other two notes also indicated that the letters were addressed to “advocate Misakyan”. 32. Article 122 of the RSFSR Code of Criminal Procedure (RSFSR CCrP) allowed the arrest of a suspect (i) at the time of the offence or immediately thereafter; (ii) if eyewitnesses pointed to him as the perpetrator of the crime; or (iii) if the suspect bore or was in possession of evident traces of the crime or if such traces were found on his clothes or at his home. A record of the arrest was to be drawn up with an indication of the legal basis and the reasons for the arrest, its time and place, and a statement by the arrested person. A prosecutor was to be informed within twenty-four hours. After the receipt of the notification the prosecutor had forty-eight hours to authorise the arrested person's placement in custody or to order his release. 33. The arrested or detained suspect should be interviewed immediately or, if this was impossible, within twenty-four hours (Article 124). 34. Article 1069 of the Civil Code provides that damage caused by unlawful actions or inaction on the part of a public authority or a public official should be compensated. Article 1070 § 1 of the Code provided, at the time, that damage caused by unlawful prosecution or unlawful placement in custody should be compensated for in full by the State, irrespective of any fault by public officials. Article 1070 § 2 provides that other damage caused by unlawful activity on the part of the investigative authorities or the prosecutor's office should be compensated for under the rules laid down in Article 1069. 35. Article 23 § 2 of the Russian Constitution protects the confidentiality of correspondence and communications and allows restrictions on them only on the basis of a court order. Article 55 § 3 provides that rights and freedoms may be limited by a federal law in so far as is necessary for protecting the constitutional regime, morals, health, the rights and legitimate interests of others, and for ensuring national defence and security. The Constitutional Court has held that the above limitations could be imposed in relation to the deprivation of liberty of convicted persons and concomitant restrictions (decisions of 16 October 2003 and 17 October 2006). 36. Article 91 of the Code of Execution of Sentences provides that the incoming and outgoing correspondence of a convicted prisoner may be inspected. However, a convicted prisoner's correspondence with a court, a prosecutor's office, a public authority supervising detention facilities, a federal or regional ombudsman and the European Court of Human Rights should not be monitored. Convicted prisoners' correspondence with their defence counsel or other persons providing legal advice on legal grounds should not be monitored, except if the prison administration has confirmed information that the correspondence contains information aimed at criminal activity. In such situations the prison administration should issue a reasoned decision on monitoring the correspondence. In addition, under Rule 50 of the Internal Prison Regulations adopted by the Federal Ministry of Justice on 3 November 2005 (decree no. 205), outgoing correspondence should be put in a mailbox or handed over to the prison staff in an unsealed envelope, except if such correspondence is privileged. 37. The Supreme Court of Russia has examined the legality of the above legislation and held that it was aimed at “protecting the rights and legitimate interests of other persons” and did not violate the requirements of Article 8 § 2 of the Convention, which, in turn, referred to “public safety” and “the protection of the rights and freedoms of others”. The court also held that the censorship rule was “nothing but” a way of exercising the right and thus could not be a violation of the right to correspondence; in any event, the censorship regime was subject to “constant control and supervision” (see decisions of 13 June and 5 September 2006). 38. On 26 December 2006 the Federal Ministry of Justice adopted Administrative Rules on the examination of detainees' complaints to public authorities (decree no. 383). The Rules provide that stationery and postal costs are to be paid in compliance with federal legislation (Rule 11). Correspondence addressed to a prosecutor, a court or a public authority supervising detention facilities, the federal or regional ombudsman or the European Court of Human Rights should not be inspected. Such correspondence should be dispatched to the addressee within one day in a sealed envelope (Rule 17). Correspondence addressed to other public authorities, non-governmental organisations or defence counsel should be dispatched within three days (Rule 18). Replies to “suggestions, applications and complaints” should be handed over to the detainee within three days of their receipt; the detainee should sign the record; and the correspondence may be included in the detainee's prison file (Rule 19). Since May 2009 such incoming correspondence is read out instead of being handed over to the detainee, and is compulsorily included in the prisoner's file; the detainee may purchase a copy of the correspondence for his personal use. Rule 54 of the Rules provides that in order to ensure the right of petition to the Court the prison administration should inform the detainee of the “procedure for making such applications” and provide him with an application form, the instructions for applications and the European Court's postal address. 39. Under section 20 of the Custody Act, persons detained on remand (suspects and accused) can only correspond through the intermediary of the detention facilities; detainees should pay for their own correspondence. The correspondence is inspected. If the correspondence contains information which may obstruct the criminal proceedings or support a criminal activity, such correspondence should not be dispatched or handed over to the detainee to whom it is addressed. The dispatch of outgoing correspondence or the handing over of incoming correspondence should be carried out within three days or as soon as it has been translated into Russian. If the detainee has left the detention facilities, the correspondence should be forwarded to the new address within three days. Under section 21 of the Custody Act, a detainee (suspect or accused) should dispatch his correspondence to State or municipal authorities and non-governmental organisations through the intermediary of detention facilities. Correspondence addressed to a prosecutor, a court, the federal or regional ombudsman or the European Court of Human Rights should not be monitored. Correspondence to other public authorities, non-governmental organisations or defence counsel should be examined by the administration of the detention facility and dispatched within three days. 40. Article 49 of the 2001 Code of Criminal Procedure defines “defence counsel” as a person who represents a suspect or defendant in criminal proceedings and provides him with legal advice. It also specifies that in order to act as defence counsel, an advocate should produce his certificate to practise law and an order from his law firm authorising representation of the person concerned. 41. Section 45 of the 1995 Custody Act provides that handcuffs may be used on a suspect or accused to put an end to his unlawful resistance, and to prevent him from escaping or from causing damage to others or himself. 42. The Council of Europe Committee of Ministers adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, the relevant parts of which read as follows: “23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. 23.3 Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners. 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security. 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings... 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.” 43. The 1996 European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights reads as follows: “The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Court. As regards persons under detention, the exercise of this right shall in particular imply that: ... such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.” The Russian Federation is not a party to this Agreement. 44. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contained the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 961, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...”