CASE OF STAROKADOMSKIY v. RUSSIA
Violations of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Reminder inadmissible;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1971 and is serving a sentence of imprisonment in the Sverdlovsk Region. 6. On 31 January 1998 the applicant was arrested. On 3 February 1998 the Yaroslavl regional prosecutor authorised his detention. On 14 April 1998 the Frunzenskiy District Court of Yaroslavl confirmed the detention order. 7. On 6 February 1998 the applicant was charged with aggravated murder. On an unspecified date, he was transferred to Moscow. 8. On 1 September 1998 the Preobrazhenskiy District Court of Moscow dismissed the applicant's complaint about an extension of his detention. On 17 September 1998 the Moscow City Court upheld the District Court's decision. 9. In September 2000 the criminal case against the applicant was listed for trial. On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged. 10. On 3 July 2002 the City Court extended the applicant's and his co-defendants' detention for three months, that is for the period from 1 July to 1 October 2002. The court relied on the fact that the defendants had been charged with particularly serious criminal offences. The applicant appealed against this decision on 12 July 2002. On 2 April 2003 the Supreme Court of the Russian Federation dismissed his appeal, finding that the trial court had authorised the extension in compliance with the applicable procedure and that the defendants could not be released in view of gravity of the charges against them. 11. On 30 September 2002 the City Court rejected the applicant's application for release, noted the gravity of the charges and, without giving further reasons, extended his detention on remand. The applicant lodged an appeal against that decision on 10 October 2002. On 12 February 2003 the Supreme Court dismissed it in the following terms: “...the defendants have been charged with particularly serious criminal offences. The court...extended the term of their detention. There were no breaches of the rules of criminal procedure that could entail quashing or amendment of that decision...The defendants' request to be relieved of the preventive measure fails because the defendants have been charged with particularly serious criminal offences.” 12. On 18 December 2002 the City Court authorised a further extension relying solely on the gravity of the charges. According to the Government, the applicant had mistakenly submitted an appeal against this order directly to the Supreme Court. In March 2003 the Supreme Court returned the case file to the City Court for a proper notification of the parties and preparation of the case file. The file was submitted to the Supreme Court on 24 July 2003. The appeal was examined on 16 October 2003 (see below). 13. On 24 March, 30 June and 30 September 2003 the City Court extended the applicant's detention with reference to the gravity of the charges. The applicant and his co-defendants appealed on unspecified dates. 14. According to the Government, the remand file regarding the order of 30 September 2003 reached the Supreme Court on 26 March 2004; it examined the appeal against it on 22 April 2004 (see below). 15. On 16 October 2003 the Supreme Court considered the appeals against the extension orders of 18 December 2002, 24 March and 30 June 2003. Neither the applicant nor his counsel was present. The Supreme Court found that there had been no procedural violations which warranted an amendment or quashing of the contested orders, and that the defendants could not be released due to the gravity of the charges. 16. On 30 December 2003 the City Court extended the defendants' detention, noting that the defendants had been charged with particularly serious criminal offences and that, they might abscond or obstruct justice. 17. On 30 March 2004 the City Court extended the defendants' detention on remand until 1 July 2004, indicating that: “...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”. The applicant's appeal against that decision was submitted to the City Court in April 2004. The file was received by the Supreme Court on 28 June 2004. A hearing was scheduled for 14 July 2004 but was adjourned for a decision on the composition of the bench. The appeal was examined on 22 July 2004 (see below). 18. On 22 April 2004 the Supreme Court upheld the order of 30 September 2003 on the same grounds as before. The court also refused the applicant's request for leave to appear at the appeal hearing because it was to be conducted without a prosecutor and because the applicant's arguments had been set out in sufficient detail in his notice of appeal. 19. On 1 July 2004 the City Court extended the defendants' detention until 1 October 2004, reproducing verbatim the reasoning of its decision of 30 March 2004. 20. On 22 July 2004 the Supreme Court upheld the order of 30 March 2004 and endorsed the City Court's reasoning. 21. On 27 October 2004 the City Court convicted the applicant as charged and sentenced him to ten and half years' imprisonment. On 10 November 2004 the judgment was pronounced in public. On 15 November 2005 the Supreme Court upheld the judgment. 22. From May 1998 to December 2005 the applicant was detained in Moscow remand centre no. 77/1, also known as “Matrosskaya Tishina”. 23. The applicant provided the following description of his conditions of detention: From May 2001 to September 2004 he had been kept in cell no. 274 measuring sixteen square metres. That cell had never housed fewer than ten prisoners and occasionally as many as eighteen. The applicant had never had a bed he could call his own and slept in shifts with other prisoners on bunk beds. The bunk beds had been short and the space between them did not allow a detainee to remain in a seated position. The remaining floor-space had been occupied by a long table. Windows had not been glazed but instead covered with thick bars and slanted plates welded to a metal screen approximately 2 cm apart. Those arrangements had impeded access to natural light and air. In winter, prisoners had stuffed blankets and mattresses in the window frame to keep the warmth inside. The walls, the ceiling and the floor were blackened by smoke, musty and badly damaged. Lights remained on day and night. The cell was infested with bugs, lice, fleas and cockroaches. The air had been stale and full of smoke. The cell had no ventilation whatsoever; ventilation conduits had been cemented in or stuffed with rubbish. Running water was cold and rusty, unfit for drinking. The lavatory pan had been approximately 30 cm in height; it had not been separated from the living area. Showers had been allowed once a month. No items of hygiene such as soap or toilet paper had been provided. There had been no replacements of bedding and no facilities for washing clothes. From 9 September 2004 the applicant had been kept in cell no. 243, measuring twelve or thirteen square metres and with four berths. The cell had accommodated four to six inmates. The window frame had been partly glazed and partly covered with wooden boards. Showers had been allowed two to three times per month. The other conditions of detention had been similar to those in cell no. 274. In support of his submissions concerning cell no. 243, the applicant had produced written statements from his former cellmates. The applicant denied that he had ever been held in cell no. 260. Rather, from 22 November to 2 December 2002 he had been held in a punishment cell in which his warm clothing had been taken away in exchange for dirty and torn overalls and trousers. From 6 a.m. to 10 p.m. a wooden bench had been lifted and chained to the wall and there had been no seating place, save for a tiny concrete post. There had been no heating. He had had no access to the shower. His books and legal documents had been taken away. None of the cells had been renovated or cleaned during the relevant periods of time. During the trial the applicant had not been allowed a daily one-hour outdoor walk; he had had no other out-of-cell activity. The courtyard was extremely dirty; it had no benches or shelter from inclement weather. 24. The Government submitted the following description of the applicant's conditions of detention: The report of 1 February 2005 issued by the remand centre, and produced by the Government, records that the applicant was detained in a number of different cells, as follows: From May 1998 to 31 May 2001 the applicant was held in cells nos. 311, 109, 410 and 267. From 31 May 2001 to 22 November 2002, and from 5 May 2003 to 11 September 2004 the applicant was held in cell no. 274. It measured 16.3 square metres and was designed for eight persons. It housed five prisoners during the second period mentioned. A report of 1 February 2005 issued by the remand centre, and produced by the Government, states that the logbooks for the period preceding 2001 had been destroyed as the retention period had expired. From 22 November 2002 to 5 May 2003 the applicant was held in cell no. 260. It had eighteen sleeping places and accommodated eight prisoners in the period from 22 February 2002 to 5 May 2003. From 11 September 2004 to 23 December 2005 the applicant was held in cell no. 243. It measured 10.8 square metres and was designed for four persons. It housed two persons during the relevant period of time. According to a report of 21 February 2006 issued by remand centre no. 77/1, the applicant had been detained in that cell from 11 April 2004 to 23 December 2005 with three other inmates. According to the above-mentioned report of 1 February 2005, the logbooks indicating the number of detainees held in the same cell(s) with the applicant between 1998 and 2001 had been destroyed on an unspecified date. It appears from the report of 21 February 2006 that the logbooks for 1998-2003 were destroyed in August 2004. The windows in the cells gave access to natural light sufficient to read or write by. According to another report of 1 February 2005 issued by remand centre no. 77/1, the window frames “were glazed for the winter period”. The intensity of artificial lighting was reduced at night. In early 2005 sanitary inspectors visited the remand centre. According to their report dated 2 February 2005, some of the above-mentioned cells had been renovated between 1998 and 2004. At the moment of the inspection, all cells had a sink and a toilet pan; in most of the cells a concrete partition separated the lavatory from the living area; the cells were naturally ventilated through ventlights and a system of exhaust ventilation; the cells had central heating; all prisoners had bedding and could take a shower once a week. Punishment cells were equipped with a folding bed, seating, a table, a sink, a lavatory and a system of ventilation and lighting. Detainees were allowed a daily one-hour walk. The remand centre had three courtyards measuring forty, forty-two and fifty-six square metres for the detainees' outdoor activity. 25. The applicant submitted that between 2000 and 2004 he had been transported between Moscow City Court and the remand centre on no less than one hundred and ninety-five days. He gave the following description of the days when he had been taken to the courthouse: On each occasion he had been taken out of the cell at 5 or 6 a.m. and had not been given breakfast. No other food or drink had been made available because, in accordance with the established administrative practice, on the days of court hearings he had been excluded from the food distribution list. Once out of their cells, detainees had been brought to the assembly section of the remand centre. Over a hundred detainees had been divided between collective and “individual” cells: forty to fifty persons in a collective cell or up to nine persons in an “individual” cell of one square metre. Cells had been extremely dirty and had no benches, windows or ventilation. Detainees had been refused access to a toilet during their presence at the assembly section and had to relieve themselves in a bucket. The air had been stale and full of smoke. Detainees had waited for their departure until 9.30 or 10 a.m. Prison vans had transported forty to fifty persons so that they had to sit on each other's laps. In the absence of appropriate seating and fixtures for each detainee, they had been exposed to a considerable risk in the case of a traffic accident. Ventilation and heating had not functioned in the van. At around 7 or 8 p.m. or later prisoners were called back to prison vans and taken to remand centres. After several hours of travel, the applicant was then brought back to his cell in the remand centre at around midnight or later. At the Moscow City Court prisoners had been put in thirty “convoy cells” measuring 1 or 1.5 square metres each. The applicant had been placed in such a cell with two or three other persons. The walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on them. There had been no bench, no ventilation, no heating and no access to natural light. He had not had unlimited access to a toilet. The applicant stayed in the cell until 7 or 8 p.m. or later. 26. The Government submitted that the applicant had been transported from the remand centre to the Moscow City Court between 2001 and 2003. In 2004 he had not been transported because the proceedings had been held in the remand centre. The applicant had been taken out of his cell at around 6 a.m. and had been provided with a hot meal. He had then been brought to the assembly section of the remand centre where all detainees awaiting departure for court hearings had been gathered. The assembly section had eight cells measuring between 12.7 and 17.9 square metres each. Each cell had a bench, toilet facilities, windows and artificial lights. According to a report of 21 February 2006 issued by the remand centre, there had been no overcrowding in those cells in 2002 and 2003. The applicant had been provided with a meal after his return to the remand centre. He had also been given a dry ration for the remainder of the day and had been allowed to bring food purchased in the prison shop or received from his relatives. The Government submitted that the catering logs had been destroyed because the retention period had expired. The applicant was transported in vans GAZ-3307(3309) and ZIL-4331. The detainees' section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees' section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers. Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. Relying on statements from three convoy officers, the Government affirmed that the maximum passenger capacity of the vans had never been exceeded. The Government submitted that the transportation logbooks for 2001 and 2002 had been destroyed because the retention period had expired. In 2003 the applicant was transported to the courthouse fifty-eight times, mostly by the GAZ-3307 and ZIL vans. It appears from the logbook for 2003 that the applicant was transported in the GAZ van together with twelve to twenty-three detainees and several convoy officers; in the ZIL van, on many occasions, with no less than twenty and up to thirty-two detainees and several convoy officers. The reports produced by the Government and an excerpt from the logbook for 2003 show that the vans normally left the remand centre between 9 and 10.40 a.m. and returned before 6.30 p.m. On several occasions they returned to the remand centre after 9 p.m. and the average travel time on the way back amounted to three hours. Reports of 2 February 2005 and 27 February 2006 issued by the Moscow Department of the Interior show that the itinerary included stops at district courts and other remand centres; the transfer normally ended before 10 p.m. but there were sometimes late court hearings or traffic jams. According to the Department's report of 2 March 2006, the applicant had a direct transfer between the remand centre and the City Court. Prior to their renovation in 2003 and 2004, the convoy premises of the Moscow City Court had consisted of three blocks of cells, each comprising seventeen cells and a toilet. The applicant had access to a toilet before or after each hearing or at any other time upon request. Cells measured 1.9 m by 1 m. Each cell had a bench and was equipped with ventilation, lighting and central heating. In winter the average temperature was 18 to 20o C. The applicant had been held separately from other defendants. A report of 2 March 2006 issued by the Moscow convoy regiment states that the design capacity of the cells had not been exceeded and detainees had been provided with hot water at the premises of Moscow courts. 27. In 2003 the applicant complained about unsatisfactory conditions of transport, hunger and overcrowded prison vans. 28. On 26 November 2003 the Moscow Department of Execution of Sentences reported on the results of an inquiry as follows: “On leaving for the court each prisoner receives a dry ration in his own hands and against his signature... On that day the prisoner is excluded from the food distribution list. The composition of the dry ration takes account of the sanitary and nutritional requirements and... includes pre-cooked first and second courses which do not require cooking and can be consumed as breakfast, lunch or dinner... The matter of providing [prisoners] with hot water was discussed with the President of the Moscow City Court... Prisoners are taken out of cells after 6 a.m. – in particular, for transport to courts – and brought back to cells before 10 p.m... The Department of Execution of Sentences controls the [resolution of] problems relating to the existing breaches by the convoy regiment (late return from the courts, overcrowded prison vans, use of unauthorised routes). On many occasions in 2002 the established breaches of the procedure for transport of prisoners were brought to the attention of the command of the convoy regiment – mostly because of late return from the courts. Such incidents also took place in the first three months [of 2003]; in that connection on 4 March 2003 a notice about the late return (after 10 p.m.) of prisoners from the courts in January and February 2003, was sent to the convoy regiment. Recently there have been no incidents of return of prisoners after 10 p.m. The assembly premises are indeed overcrowded if there are many defendants going to the courts – up to 150 persons, whereas the assembly premises are designed... to accommodate 75 to 80 persons.” 29. On 10 December 2003 the Moscow city prosecutor forwarded the applicant's complaint to the commander of the convoy regiment of the Moscow police. 30. On 17 December 2003 the Moscow convoy regiment established that, contrary to the applicant's allegations, in 2003 the design capacity of prison vans had never been exceeded; the applicant had been transported in a ZIL van together with fifteen to thirty-five detainees. Detainees received dry rations in the remand centre but they could not use them because the convoy premises at the courthouse had no facilities for heating or eating food and because no kitchenware had been available. The officers concluded that the applicant's complaint had been “made up so as to have his conditions of detention improved and to provoke the convoy officers to act unlawfully”. 31. For a summary of the applicable national legislation relating to detention on remand, see the Court's judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005). 32. On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005. 33. On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration.