CASE OF BORDIKOV v. RUSSIA
Violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);No violation of Art. 5-3;No violation of Art. 6-1;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
8. The applicant was born in 1964 and is serving a prison sentence in the Kirov Region. 9. On 19 March 1995 the police uncovered a substantial quantity of marijuana in one of the offices of Rostov Nautical College. A witness testified that the drug had been left there by the applicant, who was arrested a day later and then released on 23 March 1995 on a written undertaking not to leave town. It appears that the applicant failed to appear for questioning on several occasions. The authorities failed to establish his whereabouts and on 5 July 1995 the criminal investigation was suspended. 10. The applicant was arrested on 29 April 1998. The police found cocaine on him. More drugs and some ammunition were discovered in his flat. On 30 April 1998 the prosecutor authorised his detention pending investigation, referring to the risk of his absconding. It was further extended on 22 June 1998 until 29 July 1998. 11. Upon completion of the investigation, the prosecutor forwarded the case file to the Kirovskiy District Court of Rostov-on-Don on 22 July 1998. The District Court found, however, that the case should be remitted to the prosecutor's office for additional investigation. The relevant decision was issued on 15 October 1998. The court also ruled that the applicant should remain in custody. 12. Once the additional investigation was completed and the case file was forwarded to the District Court, the latter scheduled the hearing of the case for 22 January 1999. The first two hearings were adjourned on 22 January and 19 February 1999 on account of the judge's involvement in other proceedings. Subsequently, the District Court found certain procedural irregularities in the bill of indictment and remitted the case to the prosecutor's office on 9 March 1999 for their rectification. The applicant's detention pending investigation was further authorised by the prosecutor on 25 June 1999 until 24 July 1999. 13. On 24 July 1999 the maximum permissible period of the applicant's detention pending investigation expired. Two days later the applicant was released on an undertaking not to leave town. 14. The trial was opened on 10 August 1999. The District Court scheduled the hearing of the case for 15 September 1999; it was subsequently adjourned owing to the applicant's lawyer's failure to appear. The hearing was further adjourned on 19 October and 16 November 1999 owing to the applicant's illness. It was resumed on 14 December 1999. Referring to the gravity of the charges, the court ordered the applicant's detention pending trial. 15. On 24 January 2000 the District Court found the applicant guilty of unlawful possession of ammunition and drugs and gave him a suspended sentence of three years' imprisonment, conditional on two years' probation. The applicant was released on a written undertaking not to leave town. Both the prosecutor and the applicant appealed. 16. The Rostov Regional Court adjourned the appeal hearing owing to the applicant's lawyer's failure to appear on 23 February and 7 and 15 March 2000. The matter was considered on 29 March 2000. The Regional Court held that the trial court's findings were inconclusive, quashed the conviction and remitted the case to the lower court for fresh consideration. 17. On 8 June 2000 the District Court ordered that the proceedings should be stayed because of the applicant's illness. They were resumed on 17 May 2001, when the court scheduled the first hearing for 25 May 2001. The court also directed that the applicant should be detained pending trial. No time-limit was fixed. In particular, the court ruled as follows: “... the court considers it necessary to revoke [the applicant's] undertaking not to leave town and to order his detention pending trial since he is charged with several serious and grave offences involving illegal drug dealing which present a heightened danger to public order and impinge on such an important value protected by the criminal law as public health. When deciding on [the applicant's] detention, the court notes that, according to the medical documentation, there are no circumstances rendering him unfit for detention. Furthermore, the remand prison and special hospital no. 19 are equipped with adequate facilities to provide professional medical assistance to the detainees, if necessary.” 18. The police failed to execute the court's order as the applicant's whereabouts were unknown. On 5 June 2001 the applicant's name was put on the wanted persons' list. He was arrested by the police and remanded in custody on 13 September 2001. 19. The hearing of the case was adjourned owing to the defence counsel's failure to appear on 3 October, 5, 21 and 27 November, 11 and 26 December 2001 and 8 and 29 January 2002. On 29 January 2002 the hearing was adjourned because the judge was involved in other proceedings. 20. On 19 March 2002 the District Court dismissed an application by the applicant for release, in which he had alleged that his health had deteriorated, that he had a permanent residence and that he had not failed to observe his undertaking not to leave town. The court noted as follows: “The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence as he is charged with serious and grave offences which impinge on such an important value as public health and present a heightened danger to public order. The court considers that, if released, [the applicant] might interfere with the administration of justice or abscond.” 21. Between 26 February 2002 and 8 May 2003 the District Court adjourned nine hearings in the case on account of the applicant's or his counsel's illness or the latter's failure to appear. Twice the court adjourned the hearing because of the absence of witnesses. On two occasions the court granted a request by the applicant for additional time to study the case file. 22. The applicant's detention was extended on 1 July 2002 until 1 October 2002. The court stated the following: “The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order, [his] detention may be also justified by this fact alone... Furthermore, if released, [the applicant] might abscond, as he has done in the past... or interfere with the administration of justice.” 23. The applicant appealed, referring to his health problems. He further claimed that the District Court's conclusions that he might abscond or interfere with the administration of justice lacked any substantiation. On 13 August 2002 the Regional Court upheld the decision of 1 July 2002 on appeal. 24. On 25 September 2002 the District Court extended the applicant's detention until 1 January 2001. The court reasoned as follows: “The court does not consider it practical not to extend the [applicant's] detention and release him. His detention is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order..., the court... considers it necessary to extend his detention... Furthermore, if released, [the applicant] might abscond or fail to appear in court, as he has done in the past. That is the reason why his detention was ordered [in the first place] and his name was put on the wanted persons' list. The length of the custodial sentence to which the applicant may be subjected if found guilty also indicates, although indirectly, that such a development is very likely. Besides, if released, [the applicant] might interfere with the administration of justice, given that his line of defence is contrary to the testimonies of most witnesses. The lawyers' argument that [the applicant's] medical condition is serious cannot be taken into consideration. No objective data or medical documents have been produced to the court to show that [the applicant's] detention is incompatible with his condition. The court received only a medical report stating that [the applicant] is currently unable to participate in the hearing. Besides, according to the report, [the applicant is being provided] with the necessary medical assistance.” 25. On 12 November 2002 the Regional Court upheld the order of 25 September 2002 on appeal. 26. On 25 December 2002 and 25 March 2003 the District Court extended the applicant's detention until 1 April and 1 July 2003 respectively. Each time the court referred, as before, to the gravity of the charges against the applicant. It also noted that, if released, the applicant might abscond, as he had done in the past. The court further reasoned that it was impossible to place the applicant under house arrest or to use any other alternative “preventive measure” to ensure his attendance during the trial because, if released, he might put pressure on the witnesses who were to testify against him. On 25 February and 27 March 2003 the Regional Court upheld the relevant court orders on appeal. 27. On 27 June and 1 July 2003 the District Court considered the merits of the case and convicted the applicant of drug dealing and unlawful possession of drugs and ammunition, sentencing him to three years and one month's imprisonment. It appears that the applicant did not appeal. 28. The applicant was released on or about 23 July 2003 since the time he had served in detention was taken to be credited towards the sentence. 29. From 14 September 2001 to 2 July 2003 the applicant was detained in remand prison no. IZ-61/1 in Rostov-on-Don (СИЗО ИЗ-61/1 г. Ростова-на-Дону), in cells no. 33, 168 and 6. Twice he was transferred to a prison hospital (УЧ-398/19 МОТБ), where he stayed from 8 August to 14 November 2002 and from 6 to 20 February 2003. The applicant and the Government submitted differing descriptions of the remand prison. 30. According to the applicant, the cells in the remand prison were overcrowded. The number of bunk beds in the cells was insufficient and the inmates had to take turns to sleep. The mattresses were dirty and damp. The bedding was rarely washed. The toilet was installed on a 0.5-metre elevation platform and was not separated from the living area or the dining table. The food was of poor quality. The hot water supply was shut down on many occasions. The light was never switched off. There was little access to fresh air or daylight because of thick metal bars on the windows. In addition, there were no window panes and it was cold in the winter and stiflingly hot and humid in the summer. The cells were infested with cockroaches, bugs, bed lice and mites. The cells were never sanitised, no disinfectant was distributed and the use of powder detergent, immersion heaters and fridges was not allowed. The plaster on the walls contained poisonous and toxic substances. 31. Relying on certificates issued by the administration of the remand prison on 14 and 15 November 2005, the Government submitted that the conditions of the applicant's detention were satisfactory. There were a sufficient number of beds in each cell and the applicant had always had an individual sleeping place. The cells were equipped with a toilet and a sink. There was a separation wall between the toilet and the living area of the cell. The windows were not covered with metal shutters. The central heating ensured an adequate temperature in the cells. The cells were cleaned and disinfected on a regular basis. The bed sheets were washed and disinfected too. The cells were equipped with radio, lighting and a ventilation system. There was a dining table and a bench in each cell. The food was of adequate quality and diverse. The meals were served three times a day and comprised approximately twenty different ingredients. 32. Relying on a certificate issued on 24 May 2006 by the remand prison, the Government submitted that the plaster on the cell walls contained no poisonous or toxic substances. The paint used complied with State safety standards. 33. As regards the actual documents concerning the conditions of the applicant's detention from 2001 to 2003, the Government indicated that all the records had been destroyed after the statutory period for their storage had expired. In this connection they submitted a copy of the relevant certificate issued by the administration of the remand prison on 15 May 2007. 34. From September 2001 to March 2002 the applicant stayed in cell no. 33. According to the applicant, the cell measured 7 sq. m and housed from four to six inmates. 35. In their memorandum of 27 February 2006, the Government claimed that the cell measured 10 sq. m and was equipped with four beds. Three inmates, on average, were detained there. In their further observations the Government relied on the certificate signed by officer K., acting head of the remand prison, on 26 November 2007. According to the certificate, the cell measured 15.5 sq. m and housed four persons at the relevant time. 36. From March to July 2002 and then after February 2003 the applicant stayed in cell no. 168. According to the applicant, the cell measured 30 sq. m and housed from fifteen to twenty inmates. 37. Originally the Government did not dispute the measurements of the cell. According to them, the cell was equipped with ten beds and housed, on average, eight inmates. The Government later submitted a certificate signed by officer K. on 26 November 2007 to the effect that the cell measured 50.4 sq. m and housed fourteen inmates. 38. On 31 July 2002 the applicant was transferred into cell no. 6, located in the basement. According to the applicant, it measured 12 sq. m and housed twelve inmates. On 6 August 2002 the entire basement, including cell no. 6, was flooded from the sewage system. On the following day the inmates were returned to cell no. 168. 39. The Government denied that the flooding incident had taken place. In their memorandum of 27 February 2006 they did not accept the number of inmates or the cell measurements quoted by the applicant. According to them, the cell measured 15 sq. m and housed, on average, four inmates. Each of them had an individual bed. According to the certificate signed by officer K. on 26 November 2007, the cell measured 38.4 sq. m. It was equipped with twelve beds and housed twelve inmates. 40. According to the applicant, in 2002 he was repeatedly placed in the “assembly” cell. It measured one sq. m and had no windows, no ventilation system, no drinking water and no place for rest. The floor was dusted with bleaching powder. The walls were coated with “shuba”, a sort of abrasive concrete lining. No access to a toilet was allowed. 41. On an unspecified date the applicant spent two hours in that cell; on 24 December 2002 he was held there for three hours, and he was subsequently locked in the cell for fifteen hours from 5 p.m. on 5 March to 8 a.m. on 6 March 2003. 42. The Government admitted that the applicant had been detained in the “assembly” cell on 5 March 2003 only. They acknowledged that the applicant's detention there contravened the applicable rules and regulations. 43. According to the applicant's medical file, at least once a week he was examined by doctors of the remand centre, who administered injections and provided medication to treat his hypertension. In particular, the medical file contains the following information. 44. On 16 July 2002 the applicant received injections in connection with a hypertonic crisis. Following the treatment, his blood pressure lowered from 220/140 to 190/120. 45. From 8 August to 14 November 2002 and from 6 February to 14 February 2003 the applicant received treatment in hospital. He was released once his condition was recognised as satisfactory. 46. On 15 November 2002 the applicant complained of hypertension. He was examined by a doctor, who administered an injection and prescribed medication. 47. On 3, 7, 8 and 10 March 2003 the doctor examined the applicant and treated his hypertension.