CASE OF SHILBERGS v. RUSSIA
Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
5. The applicant was born in 1967 and lived until his arrest in the town of Neman in the Kaliningrad Region. He is now serving his prison sentence in the correctional colony in the village of Slavyanovka, Kaliningrad Region. 6. On 16 August 2001 officers of the Krasnoznamensk town police department arrested the applicant and brought him to the temporary detention unit of the Neman town police department. A police investigator informed the applicant that he had been arrested on suspicion of aggravated robbery and that a prosecutor had authorised his detention on 29 May 2001. The applicant, having been informed of the rights of accused persons, including the right to legal aid, refused legal assistance because he considered himself innocent, and signed a record confirming his refusal. During the subsequent interview the applicant denied the accusations and consistently maintained his innocence. 7. On 28 September 2001 the applicant, who was still unrepresented, had a confrontation interview with a co-accused, Mr P., at which he was assisted by a lawyer. On a number of occasions the applicant unsuccessfully requested the investigating authorities to hold confrontations with other co-defendants, witnesses and victims. 8. On 3 October 2001 the applicant took part in a voice identification parade. The parade was performed in the presence of the applicant’s lawyer and two attesting witnesses. The victim was asked to identify the alleged perpetrator by his voice. Two other individuals took part in the parade. The applicant alleged that they had had very strong accents because one of them was of Chechen ethnic origin and the other one was Lithuanian. 9. Two days later the investigator served the applicant and his counsel with the bill of indictment and allowed them to study the case file. On the following day the investigator closed the pre-trial investigation and sent the case to the Neman Town Court for trial. 10. On 12 October 2001 the Town Court remitted the case to the investigating authorities, finding that the applicant had not had sufficient time to study the file. The applicant was granted a month for examination of the file. In June 2002 the Town Court accepted a request from the applicant’s counsel, Ms Z., and granted her and the applicant five days to review the file. 11. On 11 June 2002 the prosecutor asked the Neman Town Court to remit the case for an additional pre-trial investigation in order to correct certain procedural defects. The applicant objected and applied for release on his own recognisance. On the same day the Town Court granted the prosecutor’s request and dismissed that of the applicant. 12. On 30 July 2002 the Kaliningrad Regional Court quashed the decision of 11 June 2002 in the part concerning the remittance of the case to the investigating authorities, and ordered that the Town Court should commence the trial. 13. A month later the first trial hearing was held. The applicant’s lawyer unsuccessfully asked the Town Court to exclude from evidence certain items including the record of the applicant’s voice identification parade. 14. On 5 September 2002 the Neman Town Court found the applicant guilty of several counts of aggravated robbery committed within a group of individuals and sentenced him to nine years’ imprisonment. 15. The applicant’s lawyer, Ms Z., appealed. 16. The Kaliningrad Regional Court fixed the first appeal hearing for 25 February 2003. The applicant’s lawyer, Ms Z., failed to appear and the applicant asked for an adjournment. The Kaliningrad Regional Court granted his request and postponed the hearing until 11 March 2003. 17. On 27 February 2003 the applicant, assuming that Ms Z. could no longer participate, asked the Regional Court to appoint another counsel to assist him during the appeal proceedings. The Government submitted that the Regional Court had not responded to the applicant’s request, acting in accordance with well-established judicial practice. According to the Government, at the material time the domestic courts erroneously considered that the Russian Code of Criminal Procedure did not require them to appoint legal-aid counsel to represent defendants in appeal proceedings. 18. On 1 April 2003 the Kaliningrad Regional Court upheld the applicant’s conviction. 19. On 16 August 2001 the applicant was placed in the temporary detention unit of the Neman town police department, where he remained until 24 August 2001. Between 16 August 2001 and 12 November 2002 he was detained in the unit twelve times, the shortest period of his detention lasting two days and the longest one seventeen. The aggregate length of his detention in the unit amounted to three months and thirteen days. 20. In his application form the applicant alleged that he had usually been detained in a cell measuring over nine square metres and accommodating six detainees. In his observations lodged on 1 March 2007, however, he amended his description, insisting that he had been kept in a cell measuring 6.2 square metres which housed up to 5 inmates. The remaining description of the conditions of his detention in the unit did not vary. In particular, the applicant argued that inmates had taken turns to sleep owing to the shortage of sleeping places. No bedding was provided. The cell had a window thirty centimetres wide and forty centimetres long. The cell was lit by a small bulb. In the absence of artificial ventilation in the cell it was hard to breathe owing to the thick smoke and the humidity. The cell was swarming with insects. There was no heating in winter. There was no lavatory pan or wash-bowl. Inmates used a bucket as a lavatory pan. They were allowed to clean the bucket twice a day: early in the morning and at about 6 p.m. There was no shower room in the detention unit. Inmates were provided with food once a day. In addition, in the morning they were given hot water and in the evening sweet tea. The detention unit did not have a recreation yard and inmates were therefore confined to their cells day and night. 21. On 24 June 2003 the applicant brought an action in tort against the management of the Neman town detention unit and the Kaliningrad Regional Department of the Federal Treasury. He claimed that the conditions of his detention in the unit had been inhuman and had led to a serious deterioration of his health. He also sought leave to appear before the Town Court. 22. On 20 August 2003 the Neman Town Court ordered that the applicant should be brought to the hearing fixed for 4 September 2003, finding that “it was necessary to hear him in person as the plaintiff”. 23. According to the Government, the management of the correctional colony where the applicant was detained at the material time refused to comply with the order of 20 August 2003 because domestic law did not lay down a procedure for transferring convicted prisoners to ensure their participation in civil cases. The management informed the applicant that domestic law did not oblige the authorities to ensure his presence at the hearing. 24. On 3 October 2003 the applicant received a letter from the Neman Town Court. He was informed that a hearing was listed for 24 September 2003 and that it would be held in his absence because the colony management had not brought him to the Neman Town Court. 25. On 29 December 2003 the Neman Town Court ordered a forensic medical examination of the applicant. On completion of the examination, on 12 March 2004, the applicant was served with a copy of the expert report and informed that the hearing had been fixed for 18 March 2004. 26. On 6 April 2004 the Neman Town Court partly allowed the applicant’s action and awarded him 1,500 Russian roubles (RUB, approximately 43 euros) in compensation for non-pecuniary damage. The Town Court held, in so far as relevant, as follows: “[The applicant’s] argument that his right to the established norm of four square metres of personal space was violated has been amply proven. The... witnesses confirmed that the detention unit has four cells... Cells nos. 1 and 2 each measure 6 sq. m, cell no. 4 measures 9.8 sq. m and cell no. 3 measures 10.3 sq. m. [The applicant] was detained in cell no. 4: from 20 to 24 August 2001 6 to 7 inmates were detained there, from 3 to 13 September 2001 5 to 7 detainees; from 27 September to 14 October 2001 4 to 6 inmates; from 13 to 18 November 4 to 5 inmates; and from 22 March to 4 April 2002 seven individuals were kept [in that cell]. From May 2002 onwards [the applicant] was detained alone in cells nos. 2 and 3. The registration log, listing the number of persons detained in the unit in specific cells, fully corroborates this account. [The applicant’s] allegation concerning insufficient lighting was confirmed. The single small window, which is situated right below the ceiling and is covered by two metal sheets with small perforated holes between which a fine metal net is suspended, gives no light. A bulb is situated outside the cell and provides insufficient lighting. The head of the temporary detention unit, Mr L., attempted to carry out renovations in 2001 and artificial lighting was installed in the cells; however, a commission arrived and found that the bulbs had been installed incorrectly, and everything was returned to its previous place... [The applicant’s] submission pertaining to the absence of artificial ventilation in the cells and the presence of high humidity levels was also proven. The small window covered with metal sheets with a metal net between them barred access to fresh air; in autumn, winter and spring it was even covered with felt cloth. The allegation concerning the lack of a lavatory pan and water supply system in the cell was also confirmed. They are not installed in the cells; [inmates] were taken out of the cells twice in twenty-four hours, at 6.00 a.m. and 6.00 p.m.; at those times they could also wash their faces; for the rest of the day or night they used a special bucket as [a lavatory pan]. As to [the applicant] he was frequently taken to the toilet for whatever purpose was required. [The applicant’s] argument concerning the scarcity of food was not refuted. Food was provided in the detention unit once a day. In the morning and evening inmates received tea; lunch was brought in from the municipal cafeteria “Hope” in the afternoon; [lunch] consisted of two courses based on a given sum per inmate. The abovementioned witnesses did not dispute that food had been provided once a day... The sanitary conditions in the detention unit do not comply with sanitary norms. The record of a sanitary inspection of the cells in the detention unit carried out in 2000-02 was destroyed. However, as is clear from [eight] letters sent by the Neman town temporary detention unit to the Head of the Neman district council and the Neman district sanitary inspector [in 1998, 2001 and 2002], the sanitary conditions did not meet personal hygiene standards. The temporary detention unit did not have a contract ... for cleaning of the premises. [The applicant’s] argument about the violation of his right to a daily walk was not refuted. Inmates were not allowed outdoor exercise in the detention unit as it does not have a recreation yard. [The applicant’s] allegation pertaining to a violation of his right to bathe was fully proven. The detention unit does not have a shower room; persons detained in the temporary detention unit cannot take a shower and there is no provision for such a possibility, as individuals cannot be detained in the detention unit for more than ten days; there is no hot water [in the detention unit]. The court considers manifestly ill-founded [the applicant’s] submissions concerning insufficient medical assistance. Medical assistance is provided on request to persons detained in the temporary detention unit: either an ambulance is called or inmates are taken to a doctor. The detention unit has a log recording the initial questioning, examination and provision of medical assistance to individuals detained in the Neman town temporary detention unit. [The applicant] requested medical assistance as follows: twice on 9 October 2001, a body temperature of 37.7 degrees was recorded and a doctor diagnosed him with bronchitis; on 2 February 2002 his blood pressure was taken and treatment was prescribed; on 15 February 2002 a fake incident was recorded; however, medical assistance was subsequently provided and he was sent for examination by a physician; on 18 May 2002 he was diagnosed with an acute ulcer and treatment was prescribed; on 20 May 2002 medical assistance was provided on two occasions and treatment was prescribed; on 9 June 2002 medical assistance was provided; on 23 August 2002 he was examined but no medical assistance was needed. The [applicant’s] allegation concerning his detention in the unit for more than ten days was confirmed. By virtue of Article 96 § 2 of the RSFSR Code of Criminal Procedure, in force at the time [the applicant] was detained, suspects and accused persons could be placed in temporary detention units ... for no longer than ten days within a given month. The ten-day time-limit for detention in the temporary detention unit was breached twice... He was detained for 17 days from 27 September to 14 October 2001 and for 15 days from 24 August to 8 September 2002. As a result, in September 2001 he stayed in the detention unit for 15 days; in October 2001 [he stayed] for 24 days and in March 2002 for 14 days. [The applicant’s] allegations pertaining to lack of an individual sleeping place and extreme cold in winter in the cell were proven. All witnesses confirmed that [the applicant] had not had an individual sleeping place and that there had been insufficient heating in winter in the cells. The witnesses disputed [the applicant’s] allegation that he had not been provided with a mattress and pillow; [the witnesses] explained that he had always been provided with a mattress and pillow and had had his own blanket. ... Accordingly, the court concludes that [the applicant’s] right to be detained in the temporary detention unit in accordance with the established rules and regulations was breached and that he sustained physical and mental suffering. ... [The applicant’s] argument that his health was damaged as a result of the poor conditions of his detention in the Neman town detention unit is not proven. As is clear from the report of the forensic medical examination performed by the Health Department of the Kaliningrad Region, it is impossible to establish a direct causal link between [the applicant’s] detention in the Neman town temporary detention unit and his illnesses. In determining the amount of compensation for non-pecuniary damage the court has taken into account the degree of liability of the persons responsible, the insufficiency of funds and the level of physical and mental suffering of [the applicant], and considers it necessary to award 1,500 roubles in compensation.” 27. On 26 April 2004 the applicant lodged a statement of appeal. He complained, in particular, that the Town Court had not ensured his presence at the hearings. He also sought leave to appear before the appeal court. 28. On 16 June 2004 the Kaliningrad Regional Court upheld the judgment of 6 April 2004, endorsing the Town Court’s reasoning and noting that the applicant’s presence at the hearings, before either the Town Court or the Regional Court, was not required. 29. From 24 August 2001 to 17 April 2003, save for short periods when the applicant was transferred to the Neman town temporary detention unit, he was detained in Kaliningrad no. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no renovation work on the cells had been carried out since. 30. The Government, relying on a certificate issued on 16 August 2006 by the director of facility no. IZ-39/1, submitted that during the period in question the applicant had been detained in fourteen different cells, measuring from 7.7 to 18.5 sq. m. The smallest cell had two sleeping places and the largest one had six. The Government further noted that the applicant had had an individual sleeping place at all times as the number of inmates per cell had always corresponded to the number of sleeping places. 31. Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window which was double-glazed and measured 1.2 sq. m. The windows had a casement. Inmates could request warders to open the casement to admit fresh air. The windows were covered by thick bars with so-called “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen, which gave no access to natural air or light. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows on an unspecified date. Subsequently, the windows were covered with latticed partitions to ensure “sound and visual insulation”. The cells had ventilation shafts. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-metre-high partition. Inmates were allowed to take a shower once in ten days. Each inmate was given at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees including the applicant were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. On his admission to the facility the applicant was diagnosed with a skin rash and treatment was prescribed. In February, March and November 2002 and March 2003 the applicant underwent treatment for his acute ulcer. The Government furnished a copy of the applicant’s medical record and medical certificates. 32. The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and that he had had less than two square metres of living space. Citing statements by inmates who had been detained in facility no. IZ-39/1, he stressed that the smallest cell in which he had been detained had had six sleeping places and the largest one had had twelve bunks. Inmates had to take turns to sleep. They were not provided with bedding. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management did not provide any insecticide. Walls in the cells were covered with thick layer of mould. Pieces of plaster fell from the walls. Relying on colour photographs of the cells, the applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air. In certain cells the windows were not glazed and inmates used plastic film or blankets to cover them in winter. It was impossible to take a shower as inmates were given only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once every two weeks. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. They were also allowed to smoke in the cells. The lavatory pan was separated from the living area by a small partition. At no time did inmates have complete privacy. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that medical assistance had been unavailable. 33. In June 2003 the applicant brought an action before the Tsentralniy District Court of Kaliningrad against the facility management and the Federal Treasury, seeking compensation for damage. In particular, he claimed that the conditions of his detention in facility no. IZ-39/1 had been appalling. He also sought leave to appear before the District Court. 34. On 14 July 2003 the Tsentralniy District Court decided to stay the proceedings and asked the applicant to produce evidence. That decision was quashed on appeal by the Kaliningrad Regional Court and the case was sent back to the District Court for an examination on the merits. 35. On 30 September 2003 the applicant received a letter dated 1 September 2003 from the District Court, informing him that a preliminary hearing had been fixed for 8 September 2003, and that he had the right to appoint a representative or ask the District Court to adjudicate the action in his absence. The applicant was also informed that his presence at hearings was not mandatory under Russian law. 36. On 24 September 2003 the applicant received a letter from the District Court, sent on 19 September 2003. He was informed of the first hearing listed for 20 October 2003. The remaining text of the letter was identical to the letter of 1 September 2003. 37. The applicant wrote to the District Court seeking leave to appear. He explained that he could not appoint a lawyer as he had no funds to pay for his services. 38. On 24 November 2003 the Tsentralniy District Court, in the applicant’s absence, dismissed the action as unsubstantiated. The District Court held, in particular, as follows: “...[it was] established that [the applicant], when in the detention facility, had been held in cells which were designed [to house] six detainees..., in particular in cell no. 16 measuring 7.9 sq. m..., in cell no. 45 measuring 8 sq. m..., in cell no. 57 measuring 7.8 sq. m ... and in cell no. 54 measuring 7.7 sq. m... There are no data on the number of inmates in those cells. ... cells had central heating, water supply, a sewerage system, natural and artificial lighting and artificial ventilation. There were two-tier bunks with bedding in the cells. The lighting in the cells emitted 50-75 lux, and the temperature in the cells satisfied the sanitary requirements and was 18 degrees Celsius above zero... At the material time and at present repair work was/is being performed in cells... Spot-checks of the sanitary conditions in the cells were carried out and no serious violations were established. Detainees clean up their cells once a day (in the mornings)... Medical staff monitored sanitary conditions in cells... The cells where the applicant was detained had a lavatory pan and a tap. ... the cells had cell furniture. The walls of the cells were smoothly plastered and painted. Metal plates on the windows were installed in accordance with the requirements... Inmates were given no less than fifteen minutes to take a shower... If necessary, following a written request, a detainee could be granted additional opportunities to take a shower. ... Detainees were provided with food in accordance with the norms established by the Government of the Russian Federation...” 39. On 11 December 2003 the applicant informed the District Court that he wished to appeal against the judgment of 24 November 2003. He asked for a copy of the defendant’s counterclaim and copies of other documents submitted to the District Court by the defendant. According to the applicant, the request received no response. The Government, relying on copies of registration logs of incoming and outgoing mail in the correctional colony in which the applicant had been detained at the material time and copies of the applicant’s handwritten notes confirming receipt of the documents, submitted that the applicant had been served with copies of all documents requested by him from the District Court. 40. On 16 December 2003 the applicant lodged his statement of appeal, complaining, inter alia, that the District Court had failed to ensure his presence at the hearings despite his requests to that effect and that he had had no opportunity to appoint a representative. He further argued that he had not been able to study the materials presented to the District Court by the defendant as he had not been served with them. The applicant also sought leave to appear before the appeal court and asked to be provided with legal assistance. 41. On 10 March 2004 the Kaliningrad Regional Court upheld the judgment of 24 November 2003, endorsing the District Court’s reasoning. The applicant was neither present nor represented. 42. On 21 August 2001 a local newspaper, “Komsomolskaya Pravda v Kaliningrade”, published an article entitled “Cranberry Drink” (“Кисель из Клюквы”). The article concerned the killing of a prominent mafia leader in the town of Neman. The reporter described how police officers had chased a stolen car in which the “driver-thief” and the mafia leader were travelling. The parts of the article which concerned the applicant read as follows: “During questioning the driver-thief Artur Shilbergis [the applicant’s last name was misspelled] confessed that his accomplice [the mafia leader] had most probably “been using drugs” and had not understood anything. The background to that car theft is the following. On 11 May this year three unknown persons in masks broke into the flat of a businessman in Neman. [They] stole 1,800 [US] dollars. Investigators identified the thieves. Mr M. organised the assault, his young girlfriend S. was on guard and three locals committed the robbery. But only one of the five bandits was arrested – Mr Pr. He gave useful statements and a prosecutor let him go on a written undertaking. Right away Mr Pr. began to receive threats prompting him to change his testimony. On that fateful day Mr M. and the second robber Artur Shilbergis came to Mr Pr.’s home. [They] began banging on the door. The man did not open. But it appears that Mr Pr. forgot to close the door of his car. The engine roared, and when the man ran out into the street, there was no trace of his friends.” 43. On 2 June 2003 the applicant brought a defamation action against the newspaper. He complained that the Neman town police department had provided the newspaper with information concerning his arrest, that he had been called “a robber”, “a bandit” and “a rapist” in the article and that the reporter, in violation of Article 6 § 2 of the Convention, had informed the public that the applicant had robbed a businessman in Neman. The applicant also sought leave to appear. 44. On 24 October 2003 the Leninskiy District Court of Kaliningrad dismissed the applicant’s action. The applicant was neither present nor represented, although a representative of the defendant attended. 45. The applicant appealed and sought leave to appear. 46. On 14 January 2004 the Kaliningrad Regional Court quashed the judgment of 24 October 2003 and remitted the case for fresh examination. The applicant was not present. 47. The applicant again requested the District Court to ensure his presence at the hearing. 48. On 20 October 2004 the Oktyabrskiy District Court of Kaliningrad, in the applicant’s absence, dismissed his action, finding that the information published in the article had been correct and corroborated by the findings of the trial court which had convicted the applicant of aggravated car theft on 16 November 2001. The reporter had not accused the applicant of any crime; he had merely described the circumstances that had led to the institution of criminal proceedings against the applicant. Furthermore, the District Court stressed that the reporter had never called the applicant “a rapist”, “a bandit” or “a robber”. 49. The applicant appealed, complaining, in particular, that he had not been able to attend any of the hearings before the District Court. He also sought leave to appear before the appeal court. 50. On 2 March 2005 the Kaliningrad Regional Court upheld the judgment of 20 October 2004, accepting the District Court’s reasoning. The applicant was neither present nor represented, while the newspaper’s representative attended the hearing. With regard to the applicant’s complaint about his absence from the hearings, the Regional Court held as follows: “In the statement of appeal [the applicant] asks the court to quash the judgment because the [District] court violated his right to “a fair trial” as guaranteed by paragraph 1 of Article 6 of the European Convention, by adjudicating his action in his absence although he had sought leave to appear... The arguments concerning the violation by the court of the plaintiff’s right to personal attendance at the hearings, as guaranteed by Article 6 § 1 of the European Convention, cannot be accepted as valid because this right applies to criminal cases. As to civil cases, this right is applicable only to cases of a particular type when it is impossible to adjudicate the action in the parties’ absence. In other cases the Convention does not guarantee the right to personal participation in the adjudication of a civil action. In the present case, the plaintiff’s personal participation in the adjudication of the action by the court was not necessary, as the subject-matter of the dispute was a newspaper publication and not something directly related to the plaintiff’s personality. Moreover, the Russian law in force does not require that plaintiffs who are serving a prison sentence should be brought to hearings for adjudication of their actions.” 51. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy the 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. 52. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials shall be liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 53. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). The court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health (section 26 § 1). 54. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 55. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts. It has consistently declared the complaints inadmissible, finding that the impugned provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008). 56. By virtue of Articles 58 and 184 of the Code of Civil Procedure, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse. 57. Article 51 of the Code of Criminal Procedure of the Russian Federation, in so far as relevant, reads as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: (1) the suspect or the accused has not waived the right to legal representation in accordance with Article 52 of this Code; (2) the suspect or the accused is a minor; (3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; (3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; (4) the suspect or the accused does not speak the language in which the proceedings are conducted; (5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; (6) the criminal case falls to be examined in a jury trial; (7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is appointed by the suspect or the accused or his lawful representative, or other persons at the request or with the consent of the suspect or the accused, it is incumbent on the investigator, the prosecutor or the court to ensure the participation of legal counsel in the proceedings.” 58. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of the criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance does not deprive the suspect or accused of the right to ask to be assisted by counsel during further procedural steps in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural steps which have already been performed by that time. 59. Article 373 of the Code provides that the appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal court may directly examine evidence, including additional material submitted by the parties. 60. Article 376 of the Code provides that on receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place of the hearing. The parties must be informed of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the prisoner should be summoned to the hearing. If the prisoner has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court. 61. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the prisoner’s right to legal assistance in such proceedings may be restricted.” That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. The court found that free legal assistance for the purpose of appellate proceedings should be provided on the same basis as during the earlier stages of the proceedings and was mandatory in the situations listed in Article 51. It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings. 62. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”