CASE OF VADIM KOVALEV v. RUSSIA
Violation of Art. 3;Violation of Art. 5-3
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1975 and lives in Rostov-on-Don. 6. On 12 February 2004 criminal proceedings were instituted against the applicant, at the material time Deputy Head of the Transport Safety Department, and he was arrested on suspicion of bribe-taking. The arrest took place in the absence of the lawyer. A search was carried out at the flat where he was staying. The applicant was released on the same day. 7. The applicant challenged the lawfulness of the institution of the criminal proceedings against him and of his arrest. However, on 3 August 2004 and 8 February 2005 respectively the Rostov Regional Court in the final instance dismissed his claims. 8. The applicant further challenged the lawfulness of the search carried out at his flat. On 14 February 2004 the Leninskiy District Court of Rostov-on-Don held that the search had been carried out in compliance with the domestic law. The applicant alleged that he had not been informed of the above decision until 18 May 2004. Thus, he had been prevented from lodging an ordinary appeal against it. Later, the applicant tried to initiate a supervisory review of the decision of 14 February 2004. However, on 31 May 2004 the Rostov Regional Court found that there were no grounds for quashing the decision of 14 February 2004. 9. On 10 March 2004 the Leninskiy District Court of Rostov-on-Don remanded the applicant in custody. The decision read as follows: “... From the material submitted by the prosecution, it follows that [the applicant] was charged with several particularly serious offences, and there are grounds to suspect him of having committed other similar crimes ... Besides, as it follows from the submitted material, during the search carried out at the applicant’s flat on 12 February 2004, [the applicant’s wife] went to the balcony and threw out [documents], suggesting that she was therefore trying to hide material evidence from the investigation ... This gives grounds to believe that, if not detained, [the applicant] may interfere with the proper administration of justice by destroying or hiding evidence, preventing the investigative authorities from uncovering other instances of his illegal activities, as well as putting pressure on those witnesses who had not yet been identified or questioned. [The applicant] did not provide any medical documents certifying that his state of health prevented him from being held in detention ...” 10. The applicant’s detention interrupted the inpatient treatment he had meanwhile been undergoing for an aggravated chronic kidney condition (acute pyelonephritis). 11. On 22 March 2004, on appeal, the Rostov Regional Court upheld the detention order of 10 March 2004, finding that it had been lawful and justified. 12. On 7 May 2004 the Leninskiy District Court, citing the gravity of the charges against the applicant, extended his detention until 12 June 2004. On 19 May 2004, on appeal, the Rostov Regional Court upheld the above decision. 13. On 9 June 2004 the Leninskiy District Court extended the applicant’s detention until 12 August 2004. The court held as follows: “... [The applicant] is charged with several particularly grave crimes committed by an organised group; until now, the investigating authorities have not identified all those involved in the criminal activities in respect of which [the applicant] has been charged; [the applicant] knows the persons in question. In view of the above, the court considers that, if not detained, the applicant might threaten witnesses and destroy the evidence, thereby obstructing justice ...” 14. The applicant appealed, claiming that the above decision was groundless. In particular, the applicant did not know any of the witnesses, all the relevant documents were seized by the investigating authorities, the applicant was suspended from work, his access to documents was restricted and the key to his office was confiscated. Furthermore, the applicant stated that he had no criminal record, that he had a permanent place of residence and a family, that, prior to his detention, he had been undergoing medical treatment for pyelonephritis but that the treatment had been interrupted and thus the condition had been aggravated and that others involved in the case had been given more lenient preventive measures. 15. On 30 June 2004, on appeal, the Rostov Regional Court upheld the lawfulness of the decision of 9 June 2004 without considering the arguments put forward by the applicant. 16. On 10 August, 8 September and 9 November 2004 the Leninskiy District Court extended the applicant’s detention until 12 September, 12 November and 12 December 2004 respectively. The court again referred to the gravity of the charges against the applicant and the risk that he might put pressure on witnesses or otherwise obstruct justice. 17. On 25 August, 20 September and 19 November 2004 respectively, the Rostov Regional Court upheld the above decisions on appeal. 18. On 10 December 2004 the pre-trial investigation was completed and the criminal case against the applicant and four other co-defendants was referred for trial to the Rostov Regional Court. The applicant remained in detention. 19. On 21 December 2004 the Rostov Regional Court scheduled a preliminary hearing for 29 December 2004. The issue of the applicant’s detention was left unexamined. 20. On 29 December 2004 the Rostov Regional Court adjourned the preliminary hearing until 12 January 2005. The issue of the applicant’s detention was again left unexamined. 21. On 12 January 2005 the Rostov Regional Court held the preliminary hearing, and on 13 January 2005 the court ordered that the preventive measure applied to the applicant should remain unchanged. 22. On 1 March 2005 the applicant made an application for release, which on 2 March 2005 was dismissed by the Rostov Regional Court with reference to the absence of sufficient grounds for altering the preventive measure. 23. On 7 June 2005 the Rostov Regional Court maintained the applicant’s custodial measure and extended it until 11 September 2005. The court reasoned its decision by the fact that the criminal case against the applicant was being examined at the final stage of the judicial investigation, that the applicant was charged with several particularly serious offences and that, if released, he might abscond or otherwise obstruct the administration of justice. 24. On 11 August 2005, on appeal, the Supreme Court of Russia upheld the lawfulness of the above extension order. 25. Prior to the applicant’s trial, some details of the applicant’s criminal case were disclosed by the local media. 26. On 8 September 2005 the Rostov Regional Court convicted the applicant of abuse of office, bribe-taking and forgery and sentenced him to eight years’ imprisonment. 27. On 22 December 2005 the Supreme Court of Russia modified the qualification of the crimes committed by the applicant and reduced the sentence to four years’ imprisonment. 28. From 15 March 2004 to 21 April 2006 the applicant had been held in remand prison IZ-61/1 of Rostov-on-Don (Следственный Изолятор ИЗ-61/1 Главного управления Федеральной службы исполнения наказаний по Ростовской области). Throughout this period the applicant had been held in cells nos. 50, 55, 116, 120, 121, 122, 126, 179 and household service units (жилые секции отряда хозяйственного обслуживания) nos. 156 and 159. 29. As regards the cells’ measurements and the number of inmates detained therein together with the applicant, the Government submitted as follows. (a) cell no. 50 measuring 15.2 square metres accommodated up to 4 detainees; (b) cell no. 55 measuring 16.1 square metres accommodated up to 4 detainees; (c) cell no. 116 measuring 56.2 square metres accommodated up to 14 detainees; (d) cell no. 120 measuring 15.9 square metres accommodated up to 4 detainees; (e) cell no. 121 measuring 16 square metres accommodated up to 4 detainees; (f) cell no. 122 measuring 15.9 square metres accommodated up to 4 detainees; (g) cell no. 126 measuring 44.5 square metres accommodated up to 12 detainees; (h) cell no. 179 measuring 32.8 square metres accommodated up to 8 detainees; (i) household unit no. 156 measuring 44.2 square metres accommodated up to 18 detainees; and (j) household unit no. 159 measuring 31.3 square metres accommodated up to 10 detainees. 30. In each cell the applicant had an individual bed and had been provided with bedding (a mattress, a pillow, a blanket, two bed sheets, a pillowcase and a towel) and tableware (a spoon, a mug and a plate). 31. Each cell had windows measuring at least 1.2 by 0.9 meters. The windows had been barred from both the inside and the outside. The access of fresh air and day light had not been restricted. The level of natural lighting had corresponded to the established sanitary norms and allowed the inmates to read and write. 32. The cells had been illuminated with 100 watt filament lamps, which had been on from 6 a.m. to 10 p.m. on weekdays and from 7 a.m. to 11 p.m. on weekends and holidays. At night-time the cells had been lit by 75 watt security lights with tinted glass shades. Security lights had not disturbed the inmates’ sleep. 33. All cells had been equipped with extractor fans and a heating system, both functioning properly at the relevant time. The average winter temperature in the cells did not go below +18 degrees Celsius, and the average summer temperature did not go above +23 degrees Celsius. 34. The applicant had received food of adequate quality in accordance with the established legal norms. 35. The applicant had not applied for medical assistance during his stay in the remand prison. 36. In support of their submissions the Government provided several certificates issued by the director of IZ-61/1 on 21 June 2010, the results of a laboratory examination of the microclimate of the cells (illumination, temperature, relative air humidity and air circulation) in 2004-2006 and statements by wardens (although not dated). The Government further annexed to their submissions copies of documents certifying that registration logs of the detention facility had been destroyed due to the expiry of the time-limit for their storage. 37. As regards the cells’ measurements and the number of inmates detained therein the applicant submitted as follows: (a) cell no. 50 where the applicant had been held from January to mid-July 2005 measured approximately 7 square metres and housed from 6 to 9 detainees; (b) cell no. 55 where the applicant had been held from August 2004 to January 2005 measured approximately 7 square metres and housed from 6 to 8 detainees; (c) cell no. 116 where the applicant had been held from mid-July to the beginning of September 2005 and from mid-September to mid-December 2005 measured approximately 30 square metres and housed up to 24 detainees; (d) cell no. 120 where the applicant had been held during two days in January 2005 measured approximately 7 square metres and housed from 6 to 8 detainees; (e) no specifics were provided for the cell no. 121 where the applicant had been held during one day in January 2005; (f) cell no. 122 where the applicant had been held during a week in the beginning of September 2005 and from mid-December 2005 to mid-February 2006 measured approximately 7 square metres and accommodated 6 detainees; (g) cell no. 126 where the applicant had been held from April to August 2004 measured approximately 30 square metres and accommodated over 26 detainees; (h) cell no. 179 where the applicant had been held from March to April 2004 measured approximately 22.5 square metres and accommodated up to 16 detainees; (i) no specifics were provided for household units nos. 156 and 159. 38. The appalling sanitary condition of the cells had been aggravated by the arrangement of the lavatory, elevated by 0.7 meters above the floor level and separated on one side by a 1-meter-high brick or steel partition. As a result a person using the toilet was in plain view of his cellmates. 39. The 1-hour outside walks had not been available on the days when the applicant had been taken to participate in investigative actions or court hearings. Likewise, on such days the applicant had been deprived of shower, normally available once a week. In the period from January to September 2005 when the applicant had been participating in the hearing of his case, he had waited up to three-four weeks to take a shower. 40. Besides two superficial medical checkups no other medical assistance had been provided to the applicant. 41. For a summary of the relevant domestic law and Council of Europe documents see Veliyev v. Russia, no. 24202/05, §§ 100-115, 24 June 2010.