CASE OF TERESHCHENKO v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1964 and is serving a prison sentence in the Voronezh Region. 6. On 19 September 2002 a search of the applicant’s flat was carried out. He was then charged with drug trafficking. The applicant was kept in police custody until 21 September 2002, when he was released on undertakings of good behaviour and to not leave town. 7. In separate proceedings, on 19 September 2003 the applicant was arrested on suspicion of causing bodily harm to another person. On 21 September 2003 he admitted the charge, allegedly under duress. According to the applicant, lawyer V., assigned to represent him, was not present at the interview and signed the record later on. However, there was no mention of counsel’s name in the list of visitors in the detention centre. On 23 September 2003 Judge M. of the Talovskiy District Court, the Voronezh Region (“the District Court”) authorised the applicant’s continued detention and stated that he “had indeed committed a very serious offence”. The applicant was charged with causing bodily harm resulting in the victim’s death. On the same date, the police took him to a hospital and required him to undergo a blood test. 8. The applicant confirmed his earlier confession in V.’s presence during an on-the-spot interview, which was recorded on video. On an unspecified date, the applicant terminated V.’s representation of him. A new lawyer, B., was appointed for the trial. 9. On 27 November 2003 Judge L. of the District Court convicted the applicant of drug trafficking. In February 2004 the District Court issued a decision admitting the applicant’s mother, K., as the applicant’s lay defender in the appeal proceedings concerning the drug-trafficking conviction. On 29 March 2004 the Voronezh Regional Court (“the Regional Court”) quashed the judgment of 27 November 2003 and ordered a retrial. 10. By a judgment of 22 November 2004, the District Court convicted the applicant of causing bodily harm resulting in the victim’s death. However, on 1 March 2005 the Regional Court quashed this judgment, considering that the trial court had wrongly allowed the reading out of a pre-trial witness statement, despite the defence’s objection and in the absence of the applicant. Thus, the appeal court ordered a retrial and that the applicant be held in custody pending it. 11. On 23 March 2005 the District Court extended the applicant’s detention, referring to the gravity of the charges against him and the risk that he would continue criminal activity, if at large. 12. In April 2005 the Regional Bar Association decided on a complaint brought by the applicant and imposed a disciplinary penalty on V., the applicant’s former lawyer, apparently, in relation to the drug-related case. 13. On 26 April 2005 the District Court returned the case about drug trafficking to the prosecutor. On 29 April 2005 the prosecutor joined the criminal cases against the applicant. On 30 April 2005 the investigator dismissed a number of motions lodged by the defence. In particular, the investigator stated that K. could no longer act as the applicant’s lay defender, since the decision to admit her to the proceedings issued in February 2004 had concerned only the appeal proceedings. 14. On 3 May 2005 the joined cases were submitted for trial before the District Court. 15. Hearings were held on 8 July and 21 July 2005. On the latter date Judge M. stripped K. of her lay-defender status in the criminal proceedings against her son, because she had been interviewed as a witness in the bodily harm case. 16. Subsequently, the case was assigned to a trial panel of three judges, including Judge M. as the presiding judge. 17. In the meantime, the applicant sought the withdrawal of Judge M. from the case, arguing bias on account of, inter alia, the judge’s statement in the detention order of 23 September 2003 (see paragraph 7 above) and his failure to ensure decent conditions of detention pending retrial or to issue permission for a visit from the applicant’s mother. The judge refused to withdraw from the case, stating that the trial court was not competent to deal with the issue of conditions of detention and that the trial court’s competence as regards visits was limited under Article 395 of the Code of Criminal Procedure to the period following delivery of the trial judgment. While admitting that the remark in the detention order was “unfortunate”, the judge stated it did not contain any information to the effect that he had an “interest in the outcome of the criminal case”. The Regional Court upheld the judge’s refusals to withdraw. 18. In reply to a renewed challenge by the applicant, on 1 August 2005 the matter was submitted to the remaining two judges on the trial panel. They considered that there were no reasons for Judge M. to withdraw from or to be removed from the criminal case against the applicant. In particular, they stated that the Custody Act required “compelling reasons” for refusing a visit by a next-of-kin to a detainee. They concluded, however, that there was no evidence that any such visit had been refused without valid reason in the applicant’s case. 19. On 7 September 2005 the District Court discontinued the case against the applicant on charges of drug trafficking, because the prosecutor had dropped the charges. 20. As to the remaining charges of causing bodily harm, the trial panel noted the defence’s challenge to the expert report concerning the victim’s injuries and granted its request for another expert report. 21. On 24 January 2006 the District Court convicted the applicant of causing bodily harm resulting in the victim’s death and sentenced him to eight years’ imprisonment. The court relied on several witness statements, the applicant’s pre-trial confession and his on-the-spot interview. 22. On 20 April 2006 the Regional Court upheld the conviction and sentence. 23. In or around October 2006 the applicant sought statutory compensation payable by the State to individuals who have been acquitted of criminal offences or in respect of whom the charges have been dropped. On 3 April 2007 the District Court granted the applicant’s claims in part as regards pecuniary and non-pecuniary damage. On 17 July 2007 the Regional Court ordered a retrial in respect of the pecuniary claims. The award in respect of the non-pecuniary claim became final. On 10 April 2008 the District Court granted the applicant’s pecuniary claim in part. On 3 July 2008 the Regional Court, considering that the applicant’s presence at the appeal hearing was not necessary, upheld the judgment. 24. In the meantime, the applicant sought supervisory review of the above judgment, challenging the factual and legal findings made by the courts and their refusal to confirm his right to compensation on account of his prosecution on drug-trafficking charges. Having heard the applicant, on 13 February 2008 the Presidium of the Regional Court amended the judgments of 24 January and 20 April 2006 recognising his right to compensation. The court rejected the applicant’s remaining complaints as unfounded. He received a copy of the supervisory-review ruling on 19 February 2008. 25. On 29 December 2008 the applicant applied for early release from prison. In his letter, which was sent to the Paninskiy District Court of the Voronezh Region, he asked that the necessary supporting documents be requested by the court from the prison administration. It appears that this letter reached the District Court on 10 February 2009. By letter dated 11 February 2009, a judge of the District Court informed the applicant of the refusal to examine the application. The letter read as follows: “Hereby I return your application for early release as it requires amendment. Certain necessary documents were not enclosed with it, namely the prison’s reports on your personality and disciplinary penalties, as well as certificates relating to employment, your medical and psychiatric conditions ... No court decision [on your application] may be issued in the absence of these documents.” The applicant did not appeal, as he was not provided with a copy of any formal decision. 26. Instead, the applicant resubmitted his application to the District Court, this time with some supporting documents. During the hearing, which took place before another District Court judge, the prison administration expressed their disagreement with his application, considering it to be premature. By a judgment of 25 March 2009 that District Court judge examined the applicant’s request. While acknowledging that the applicant had already served two-third of the sentence, the court rejected the application, referring inter alia to the fact that the applicant had received several penalties for violations of the internal prison regulations, including one placement in a punishment cell. The applicant appealed. On 23 June 2009 the Regional Court upheld the judgment. 27. Between 2002 and 2009 the applicant lodged numerous complaints, initiated proceedings against lawyer V. and various public officials accusing them of criminal offences, contesting criminal proceedings against him or complaining about the conditions of his detention (see also paragraphs 3739 below). 28. In November 2002 the applicant lodged a complaint, alleging that during the search of his house in September 2002 one of the officers had taken him into the bedroom and had pushed him against the wall. On 30 November 2002 an investigator refused to institute criminal proceedings on account of the alleged ill-treatment. In 2003 the matter was examined and a new refusal was issued by a deputy prosecutor on 28 May 2003. By a judgment of 2 September 2005, the District Court confirmed this refusal to prosecute. On 3 November 2005 the Voronezh Regional Court upheld that judgment. 29. The applicant was detained in Talovskiy Temporary Detention Centre (“TDC”), which was attached to Talovskiy police station, on numerous occasions between September 2003 and 2005 for periods at times in excess of one month. The applicant was also held in the TDC on several occasions between 2006 and 2008. 30. According to the applicant, although he was alone in the cell, no arrangements were made for a proper bed and bedding. Neither were there any facilities for taking a bath or shower or for outdoor exercise. He was given one meal a day. The walls were rendered with shuba, a coarse type of concrete, designed to prevent detainees from leaning on the walls. The cell windows were covered with metal shutters blocking access to fresh air and natural light. 31. In late 2003 the applicant had bronchitis and allegedly failed to receive appropriate treatment. In December 2003 he attempted suicide and self-harmed, being unable to stand the appalling conditions of detention and the duration of his placement in the TDC. 32. The applicant submitted that the conditions of detention in the TDC improved between 2006 and 2008, when he was allowed to take a shower and daily outdoor exercise and was provided with two meals a day. 33. Between October 2003 and July 2005 the applicant was also kept in Voronezh Remand Centre no. 36/1. According to him, at times, twenty-three detainees were held in a cell with twelve beds; thus the cell measurements were below the required international and even national standards. 34. In his observations before the Court, the applicant further argued that he had been kept in a cell measuring 25 sq. m. together with eleven other detainees. On average, the cell accommodated sixteen or seventeen detainees although it only had six bunk beds. At times, it accommodated some 20-23 detainees. The applicant enclosed diagrams of cells 141, 156, 171, 177 and 189, which, according to him, measured 27.5 sq. m. and had twelve beds each. He also provided several written statements from individuals who had been kept in the remand centre for varying periods between 2003 and 2006, at times in the same cell(s) as the applicant. For instance, T. submitted that on some occasions between twenty and twenty-seven detainees had been kept in cells measuring about 30 sq. m. with twelve beds. Another detainee stated that cell no. 171 had twelve beds but accommodated, sometimes, twenty-four detainees; they had to take turns to sleep during the day or at night. 35. Drawing on the statements from other detainees, the applicant’s lawyer argued in the observations that the cells had lacked mandatory ventilation although many detainees smoked, and, at times, the temperature there went up to 50 C. The toilet in the cells was separated in the main area by a metal bar of 1.5 m in height, which did not provide sufficient privacy. Sometimes, there was no water supply in the drainage system, so the use of the toilet had to be limited in order to reduce unpleasant smells. The cells were infested with flies, cockroaches and bugs. 36. In reply to the applicant’s initial complaint relating to the cell sizes and insufficiency of beds, the respondent Government submitted a certificate signed on 12 August 2009 by the acting chief officer of the remand centre. This certificate listed the cells in which the applicant had been kept for varying periods since October 2003 (cells nos. 1, 8, 44, 86, 90, 137, 141, 156, 171 and 188). 37. The applicant unsuccessfully complained to various public authorities about the conditions of his detention in the Talovskiy TDC. These complaints were forwarded to the Voronezh Region Prosecutor’s Office for examination. By letters of 16 March, 27 April and 26 August 2004, and 23 October 2006 the Prosecutor’s Office rejected his complaints as unfounded. It indicated that the applicant’s repeated placements in the temporary detention centre were due to logistical difficulties with transferring him between Talovskiy TDC and the Voronezh Remand Centre, which were a considerable distance apart. On 28 March and 12 September 2005 as well as on 29 September 2006 the Talovskiy District Prosecutor’s Office rejected the applicant’s renewed complaints as unsubstantiated. 38. By letters of 2 and 12 September 2005, the President of the District Court declined jurisdiction to deal with the applicant’s complaints about his repeated and prolonged detention in the Talovskiy TDC, including his complaints about the physical conditions of detention there. 39. By letter of 1 September 2008, the Regional Prosecutor’s Office informed the applicant that his earlier complaints had been examined by the district prosecutor, who had issued decisions dated 11 October 2006, 25 June 2007 and 28 January 2008 confirming unspecified violations in relation to the conditions of detention in the TDC. 40. The applicant is now detained in prison no. 3, located in Pereleshino in the Voronezh Region. According to him, the living area of the prison measures 64 square metres and houses 38 detainees; the artificial lights in the dormitory are insufficient; the food is bad. 41. Between January 2004 and March 2005 the applicant received visits in the remand centre from his mother, K. 42. Around April 2005 the applicant started to complain that he was no longer receiving visits from his mother. According to the Government, she did not come to the remand centre and did not request any visits at that time; nor did she lodge any complaints of visits being refused. 43. By letter of 1 April 2005, Judge M. of the District Court stated that the Code of Criminal Procedure did not require a court decision in response to the applicant’s complaint concerning family visits. Section 18 of the Custody Act did not necessitate a request for such a visit to be granted; the decision on whether to authorise such a visit remained within the discretion of the authority dealing with the criminal case. Article 395 of the Code of Criminal Procedure provided that visits could be authorised following delivery of the trial judgment and before its enforcement. 44. By letter of 7 April 2005 the President of the District Court dismissed the applicant’s renewed complaint. He indicated that family visits could be allowed under Article 395 of the Code of Criminal Procedure after pronouncement of a trial judgment. 45. The applicant also complained to the Regional Prosecutor’s Office that a police officer (apparently, the officer in charge of Talovskiy TDC) was refusing to allow visits from his mother. This complaint was forwarded to the Talovskiy District Prosecutor’s Office for examination. In July 2005 the district prosecutor dismissed the complaint from the applicant, stating that while K. had been accepted in February 2004 as a lay defender in the appeal proceedings concerning the drug-trafficking case against the applicant, this case had been joined to the second case pending before the District Court. The prosecutor noted that the District Court had not yet issued any decision accepting K. as a lay defender in the joined cases. 46. The applicant complained to the Supreme Court of Russia about the refusal to allow visits from his mother. This complaint was forwarded to the District Court. By letter of 29 July 2005, the President of the District Court stated as follows: “I consider that section 18 of the Custody Act does not require the court “dealing with the criminal case” to grant applications for the authorisation of visits. Such visits may be authorised depending on the circumstances relating to the criminal proceedings. Following the quashing of the judgments [in respect of the applicant] on appeal and the decision to order a retrial, the retrial has not started yet. Article 395 of the Code of Criminal Procedure requires the court to grant visits from next-of-kin following delivery of the trial judgment ... K. had been accepted as [the applicant’s] lay defender, in addition to counsel, and was granted permission to pay visits to [the applicant] ... Section 18 does not require the court to issue any additional authorisations for visits ...” 47. The applicant also complained to the Regional Prosecutor’s Office in June 2005. This complaint was forwarded for examination to the Talovksiy District Prosecutor’s Office. By letter of 3 August 2005 the district prosecutor dismissed his complaint. 48. The applicant tried to lodge an appeal before the Regional Court in relation to the above letter of 29 July 2005. By letter of 12 September 2005, Judge M. of the District Court refused to process the applicant’s appeal against the letter. The judge indicated that a letter was not amenable to appeal. 49. The applicant submitted to the Court a statement made by his mother. She affirmed that on several occasions during the year 2004 she had been afforded the opportunity to talk for a short time with the applicant through a metal partition, because there was no meeting room in Talovksiy TDC. Between March and August 2005 she had lodged six requests before Judge M. of the District Court seeking authorisation for a meeting with the applicant in the TDC. In her requests, she referred to her next-of-kin status rather than her position as a lay defender in the criminal proceedings. The judge had dismissed her requests orally without issuing any formal decision which would be amenable to appeal. Her similar requests to the President of the District Court were also dismissed. She had presented the decision of 16 February 2004 to the chief officer of the Talovskiy police station but he had demanded a recent court order. Apparently, her ensuing complaints against the officers had not been processed by the District Court. Between February 2004 and July 2005 no permission had been granted for her to visit as a lay defender (which would have had the benefit of visits not being limited in frequency and duration, see paragraph 56 below). 50. In September 2005 the Court received the applicant’s application form dispatched, by registered mail, on 30 July 2005 from Remand Centre no. 36/1 (as indicated on the envelope). In March 2006 the Court received the applicant’s additional application form, with enclosures, sent by registered mail on 4 February 2006 from the same remand centre (as indicated on the envelope). In August 2006 the Court received two further packages, with numerous enclosures, from the applicant. According to the applicant, the above correspondence was, in fact, dispatched by his mother, K. 51. The Court also received the applicant’s letter dated 15 December 2006, which he submitted had been sent by his mother, in which he complained that prison no. 3 had not dispatched his letters of 27 June, 2 August and 8 September 2006. 52. Subsequently, the applicant also complained to the Court that the remand centre had not dispatched his letter dated 27 April 2006. He submitted a copy of a note, apparently written by a remand centre officer, stating that his letter had been dispatched. The Court did not receive this letter. 53. The applicant claimed that on 26 December 2006 the staff of the prison refused to dispatch a letter dated 15 December 2006 to the Court. He was then transferred to the TDC in Talovaya. According to the applicant, his mother then tried to dispatch the letter from there, but the staff of the postal office refused to dispatch it. 54. On 16 May 2008 the Registry of the Court received the applicant’s letter dated 28 December 2006, apparently dispatched by the applicant’s mother. In that letter the applicant alleged that on 26 December 2006 the administration of prison no. 3 had refused to dispatch his letter of 15 December 2006. 55. The Registry also received the applicant’s letters of 31 March, 10 October, 15, 21 and 29 December 2008, and several letters in 2009 from prison no. 3.