CASE OF CHUMAKOV v. RUSSIA
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1979 and lives in Pyatigorsk, the Stavropol Region. 6. On 29 September 2002 a certain Ms Sh. was murdered. On the next day the police initiated criminal proceedings in that connection. 7. On the same day a certain Mr M., who had been arrested for the administrative offence of public drunkenness, complained to the police that the day before the applicant had allegedly sworn at him and attempted to start a fight. 8. On 2 October 2002 an administrative offence record was drawn up in respect of the applicant by police officers K. and B. The applicant denied Mr M.’s allegations. 9. On 3 October 2002 he was found guilty of disorderly conduct and sentenced to five days’ administrative detention by the Justice of the Peace of the 1st Circuit of the Kirovskiy District of the Stavropol Region. 10. On 3 October 2002, pursuant to the aforementioned judgment of the same date, the applicant was placed in the temporary holding facility of the Kirovskiy District Police Department of the Stavropol Region (“the district police department”). 11. According to the applicant, between 3 and 6 October 2002 police officers forced him to confess to the murder of Ms Sh. by beating him up and threatening him with rape with a rubber truncheon. 12. On 6 October 2002 the applicant signed a confession to the murder of Ms Sh. He stated, in particular, that he had strangled her with a TV power cable. 13. On 7 October 2002 the investigator in charge recorded the applicant’s arrest on suspicion of murder. 14. The investigator also ordered a forensic medical examination of the applicant, which was carried out on 7 October 2002 by a medical expert with ten years’ experience, who certified that he had no injures (certificate no. 181). 15. On 8 October 2002 the Kirovskiy District Court of the Stavropol Region (“the District Court”) ordered the applicant’s placement in custody as a preventive measure, stating that he was suspected of having committed a particularly serious criminal offence, might abscond from justice and had been given negative character references at the place of his residence. The applicant was then transferred to the remand centre “SIZO-26/2” of Pyatigorsk. 16. On 9 October 2002 the applicant was formally charged with murder. 17. On 6 December 2002 the District Court extended the term of the applicant’s pre-trial detention until 7 January 2003. The applicant’s counsel argued that there were no grounds to believe that the applicant might abscond, that he had a permanent place of residence and permanent work and had confessed to the crime. The fact that he was accused of a serious criminal offence could not, as such, be the basis for his continued pre-trial detention. The court decision read as follows: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the preventive measure [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime associated with a high risk to society, which does not exclude the possibility of him absconding from the investigating bodies and the court, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” The applicant did not appeal against that decision. 18. On 27 December 2002 the applicant requested the investigator to exclude his self-incriminating statements of 6 October 2002 from the body of evidence, alleging that he had confessed to the murder under physical and psychological pressure by the police officers during his administrative detention. The applicant alleged that every night they had taken him out of his cell to their office and had psychologically pressurised him to confess. 19. On 30 December 2002 the District Court examined the investigator’s application for the extension of the applicant’s detention. The applicant stated that he had no intention of absconding or influencing witnesses and asked to be released. The court extended the term of his pre-trial detention until 7 February 2003 for the following reasons: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the measure of restraint [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime, and might impede a thorough, comprehensive and objective investigation or abscond from the investigating bodies, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” It does not appear that the applicant appealed against this decision. 20. On 31 January 2003 the applicant was served with a copy of the bill of indictment for the murder. 21. On 6 February 2003 the case was sent to the District Court for trial. 22. Upon receipt of the case file, on 6 February 2003 the District Court scheduled a preliminary hearing for 17 February 2003. It also ordered that the preventive measure of detention should remain unchanged. It does not appear that the applicant appealed against this decision. 23. On 19 May 2003 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. It relied, in particular, on his self-incriminating statements. It took into account statements by the police officers, who denied ill-treating the applicant, and the medical expert report, according to which the applicant’s examination on 7 October 2002 had not revealed any injuries on him, and dismissed the applicant’s allegations of ill-treatment as unsubstantiated. 24. On 20 July 2003 the applicant’s counsel obtained written statements from a certain Mr I. Sh. who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department from 3 to 5 October 2002. He stated that the applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him up and that they had threatened him with rape with a rubber truncheon. 25. On 31 July 2003 the Regional Court examined the applicant’s appeal against his conviction. It found that the evidence on which the judgment was based contained a number of discrepancies which had not been resolved by the trial court and that the failure to summon witnesses for the applicant properly had undermined the adversarial nature of the trial. It also held that the applicant’s allegations that his self-incriminating statements had been obtained under duress had not been thoroughly examined; that the police officers’ statements did not constitute sufficient evidence of their proper conduct; and that the applicant’s counsel’s complaint to the prosecutor’s office of the Kirovskiy District (“the district prosecutor’s office”) about the unlawful acts of the police had been left unanswered and no inquiry in that connection had been conducted. The Regional Court thus quashed the judgment and remitted the case for a fresh examination by the first-instance court. It also ordered that the applicant remain in custody. 26. On 11 August 2003 the case file arrived at the District Court. 27. On 12 August 2003 the District Court extended the term of the applicant’s detention until 6 November 2003, stating that the applicant was charged with a particularly serious criminal offence and that, if released, he might impede the criminal proceedings or evade trial. It also noted that the case had been before the courts for more than six months; that the initial term of the applicant’s detention established in Article 255 § 2 of the Russian Code of Criminal Procedure had expired and that it should be extended for the next three months. The applicant, who was neither present nor represented at the hearing, did not appeal against this decision. 28. On 12 September 2003 the applicant’s lawyer obtained further written statements from Mr I. Sh., who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department in October 2002. The applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him in the area of the kidneys and liver. Mr I. Sh. further stated that he had seen fresh scratches on the applicant’s left shoulder and elbow and that the applicant’s lower lip had been hurt. 29. On 6 November 2003 the District Court rejected the applicant’s request for release under an undertaking not to leave a specified place and, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, extended his detention for three months until 6 February 2004 on the same grounds as those given in its decision of 12 August 2003. The applicant’s lawyers referred to the length of detention, the applicant’s innocence and the deterioration of his health. The applicant appealed against the decision, arguing, in particular, that it was insufficiently reasoned. 30. On 10 December 2003 the Regional Court quashed the decision of 6 November 2003, referring to the absence of a transcript of that hearing in the materials of the case, and remitted the matter to the same court for a fresh examination. 31. On 8 January 2004 the District Court ordered, under Article 255 § 3 of the Russian Code of Criminal Procedure, that the term of the applicant’s detention be extended until 6 February 2004. It relied on the same reasons as those which were set out in the decision of 12 August 2003. The applicant’s lawyers referred to the absence of reasons for the applicant’s continued detention, in particular the lack of grounds for the risk of him absconding, his permanent place of residence and work, positive references and the length of his detention. The court stated that at that stage it could not take into account the argument concerning the applicant’s innocence. It did not address any other arguments put forward by the applicant’s lawyers. The applicant did not appeal against that decision. 32. On 5 February 2004 the District Court again examined the question of the preventive measure applied to the applicant. The applicant asked to be released, referring to the deterioration of his health and stomach complaints. His lawyers referred to the excessive length of his detention, the absence of reasons to believe that he might abscond or otherwise impede the proceedings and the fact that he had received positive character references. The court dismissed their request for release and extended, on the basis of Article 255 § 3 of the Russian Code of Criminal Procedure, the applicant’s detention for a further three months, until 6 May 2004, for reasons identical to those cited in its previous decisions. It did not address the applicant’s lawyers’ arguments. It does not appear that the applicant appealed against that decision. 33. On 22 March 2004 the applicant’s father’s flat was searched. The applicant’s father’s complaints about the unlawfulness of the search were dismissed by the district prosecutor’s office on 13 April 2004 and by the District Court on 14 May 2004. 34. On 26 April 2004 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. It examined, in particular, witness I. Sh. (see paragraphs 24 and 28 above) who stated before the court that the applicant had not complained about any ill-treatment by the police officers and that he had not seen any injures on the applicant. According to Mr I. Sh., his previous statements to the contrary had been false and had been given at the request of the applicant’s parents and defence counsel in order to help the applicant. Two other witnesses, Mr R. and Mr S., who had also been held in the applicant’s cell at some point in October 2002, also stated that they had neither heard from the applicant about any pressure by the police nor seen any injures on him. 35. On appeal, on 3 August 2004 the Regional Court found that the trial court had failed to assess the arguments put forward by the defence properly and that the applicant’s right to defend himself had been violated. It quashed the judgment of 26 April 2004 and remitted the case to the District Court for a fresh examination. The Regional Court also ordered that the applicant’s detention on remand as a preventive measure remain unchanged. 36. On 18 August 2004 the case file arrived at the District Court. 37. On 23 August 2004 the District Court scheduled a preliminary hearing in the case for 1 September 2004. It also ordered that the preventive measure applied to the applicant in the form of detention on remand remain unchanged. It does not appear that the applicant appealed against that decision. 38. On 1 September 2004 the District Court extended, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, the term of the applicant’s detention for three months, to be calculated from 13 August 2004 until 13 November 2004. The court noted that the term of the applicant’s detention, as previously extended on 5 February 2004 (see paragraph 32 above), had expired on 13 August 2004, and that it had received the case file from the Regional Court only on 18 August 2004. The applicant requested the court to release him, referring to the deterioration of his state of health and his stomach ulcer. The court held as follows: “... the accused ...... established in detail ... in the course of the trial, the evidence which could have determined [his] guilt [or innocence] was not examined ... The positive character references of the accused ... do not constitute sufficient grounds to release him ... because, if released, he might abscond ... and hinder the establishment of the truth in the case. The court cannot take into account ... the claim that the accused is ill and needs medical treatment as he has not submitted any relevant documents. The court has not established any procedural violations in respect of his detention on remand.” 39. The applicant and his counsel appealed against the decision of 1 September 2004, arguing that the previously authorised term of the applicant’s detention had expired on 13 August 2004 and had not been extended by the court. According to them, the applicant had therefore been detained unlawfully for 18 days from 13 August to 1 September 2004. 40. On 17 September 2004 the Regional Court upheld the decision of 1 September 2004 on appeal. It stated that the fact that the applicant was accused of a particularly serious criminal offence had rightly been taken into account by the first-instance court; that the applicant’s state of health did not preclude his being kept in custody and that there had, therefore, been sufficient reasons for extending his detention. 41. On 1 November 2004 and 26 January 2005 the District Court further extended the term of the applicant’s detention on remand until 13 February and 13 May 2005 respectively. In its similar decisions the court relied on the same reasons to justify the applicant’s continued detention as those set out in the decision of 1 September 2004. The applicant did not appeal against either of those two decisions. 42. On 25 April 2005 the District Court convicted the applicant of murder and sentenced him to nine years’ imprisonment. During the hearing witness I. Sh. (see paragraphs 24, 28 and 34 above) stated that the applicant had sometimes been taken out of his cell for interrogation after 10 p.m., that he had seen a scratch on the applicant’s lip and that the applicant had told him that he had been beaten up. According to Mr I. Sh., he did not remember whether there had been other injuries on the applicant. Mr I. Sh. also stated that he had lived at the applicant’s parents’ home for several days and had done some work for them and that the applicant’s family had supported him when he had been detained in the context of another criminal case. 43. On 22 September 2005 the Regional Court quashed the judgment and remitted the case to the District Court for a fresh examination. It found, in particular, that the first-instance judgment was based on conflicting evidence. It also held that the preventive measure should remain in place as there were no grounds to release the applicant. 44. On 11 October 2005 the case file arrived at the District Court. 45. On 26 October 2005 the District Court held a preliminary hearing in the case for the purpose of taking a decision on the preventive measure to be applied in respect of the applicant. The applicant requested the court to replace his detention with any preventive measure other than deprivation of liberty. His counsel requested that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour, since the applicant had been held in custody for more than three years, had positive character references and did not intend to evade the trial. The prosecutor asked for the preventive measure to remain the same. 46. The District Court noted that the applicant’s criminal case had been pending before the court since 6 February 2003, and that from that date onwards his detention had been regulated by Article 255 § 3 of the Russian Code of Criminal Procedure, which allowed it to be extended beyond the initial six-month period for further periods of three months. It further noted that the term of the applicant’s detention had been extended on numerous occasions, and that the last time, on 26 January 2005, the District Court had authorised his detention until 13 May 2005. It also noted that before the expiry of that period, on 25 April 2005, the applicant had been convicted by the trial court. The court then noted that the term of the applicant’s detention, as extended on 26 January 2005, should be considered as having run out on 9 October 2005, provided that the period between 25 April 2005, the date of the conviction, and 22 September 2005, the date of its quashing on appeal, was excluded from the term of detention on remand, in accordance with paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004. The court thus held that the term of the applicant’s detention had not been extended in accordance with a procedure prescribed by law and that therefore, despite the seriousness of the charge against him, there were no legal grounds for his further detention on remand. It ordered that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour and that the applicant be released immediately. 47. On 3 November 2005 the prosecutor appealed against that decision, arguing that the District Court had erred in its interpretation of paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004, since it followed from the meaning of Article 255 of the Russian Code of Criminal Procedure that the term of detention should run from the day of a criminal case’s arrival at a first-instance court and not from the day of delivery of an appellate court’s decision. Therefore, in the prosecutor’s opinion, the term of the applicant’s detention should have run out on 29 October 2005. The applicant disagreed, pointing out the fact that he was employed, that he did not intend to evade justice and that he simply wanted the trial to be concluded as soon as possible and his good name restored. 48. On 30 November 2005 the Regional Court found that the District Court had violated Article 255 § 3 of the Russian Code of Criminal Procedure, as the term of detention of a person who had committed a serious or particularly serious criminal offence had to be extended by a court decision each time, and such extension could not be authorised for a period longer than three months at any one time. It went on to agree with the prosecutor’s submissions and stated that the term of the applicant’s detention should have started running on 11 October 2005, the date when the case file had been received by the District Court, and that therefore it should be regarded as having expired on 29 October 2005. The court then held that this procedural breach was grounds for the annulment of the decision of 26 October 2005, and ordered that the case be sent to the District Court for a new examination. According to the applicant, he attended the hearing of 30 November 2005 and was placed in detention immediately after that hearing. 49. On 21 December 2005 the District Court ordered the applicant’s release on an undertaking not to leave his place of residence. It stated that the applicant had been held in detention on remand for more than three years, that after his release on 26 October 2005 he had immediately started working and that he had been given positive character references from his employers. The court held that there were no reasons to believe that he would evade the trial or put pressure on witnesses and thus obstruct the establishment of the truth, and therefore there were no grounds to keep him in detention. The applicant was released immediately. 50. On 2 May 2006 the District Court examined the criminal case against the applicant for the fourth time. At the hearing, the applicant insisted that he was innocent and reiterated that he had made his confession at the pre-trial stage because he had been beaten and threatened by the police. 51. The District Court observed that the charge against the applicant had mainly been based on his self-incriminating statements and written confession made during the preliminary investigation, which he had later repudiated as having been made under duress. It further noted, as regards the applicant’s medical examination on 7 October 2002, which had not revealed any injuries on him, that the applicant had not been apprised of the investigator’s order to carry out that examination until it had been over. Therefore, in the District Court’s opinion, a note on the resulting expert report to the effect that the applicant had had no comments or questions for the expert, and had not wished to call into question the expert’s authority, was devoid of any legal meaning. 52. The court further stated that on 6 February 2006 the decision of 27 January 2003, by which the district prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment during his administrative detention in October 2002, had been quashed, and that on 15 February 2006 the district prosecutor’s office had again refused to institute criminal proceedings owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. In the District Court’s opinion, however, the applicant’s allegation that he had made self-incriminating statements and had signed his confession as a result of coercion by the police was corroborated by the evidence in the case. 53. In particular, the court examined the register of detainees of the temporary holding facility where the applicant had been held and noted that the applicant had been taken out of his cell on 3 October 2002, from 7.30 p.m. to 8.30 p.m., and on 4 October 2002 from 6.25 p.m. to 6.50 p.m. and from 9.40 p.m. to 9.55 p.m. The court further observed that, according to the applicant’s written confession, it had been given on 6 October 2002 in office no. 36 of the temporary holding facility and not in his cell. However, the register did not contain any records confirming that he had been taken out of his cell on that day. Therefore, the District Court doubted the reliability of the official records. It found that the applicant’s confession could not be regarded as having been given voluntarily and was therefore inadmissible as evidence. 54. The District Court also noted that, when the applicant had been interviewed as a suspect on 7 and 9 October 2002, he had not been warned that his statements could be used as evidence, in breach of the domestic law. Having examined the body of evidence in the case, the District Court further stated that it had been contradictory in a number of aspects. In particular, a report on the medical forensic examination of Ms Sh.’s body had attested to the presence of numerous internal injuries. The investigating authorities, however, had never attempted to establish the circumstances in which the victim had sustained those injuries, and the applicant had never admitted inflicting any such injuries on the victim, simply having confessed to having strangled her (see paragraph 12 above). In this respect the District Court noted that, as was clear from the materials of the case, at the time when the applicant had made his self-incriminating statements and signed his confession, the aforementioned expert examination had not yet been carried out and the investigating authorities had not known of the existence of those injuries. 55. The court further listed a number of other shortcomings in the preliminary investigation and discrepancies in the adduced evidence. It found it unproven that the applicant had committed the imputed offence. The court thus acquitted the applicant and acknowledged his right to rehabilitation. 56. On 4 July 2006 the Regional Court upheld the judgment on appeal. It agreed with the trial court’s finding that the confession had been signed as a result of coercion by the police officers. The court noted in this respect that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion, and therefore the arguments of the prosecuting party in the appeal submissions to the effect that the trial court had failed in its judgment to specify the methods of that coercion and to identify those responsible were unfounded. It also agreed with the trial court that the applicant’s self-incriminating statements, which he had later repudiated, had contradicted the other evidence in the case. 57. On 24 January 2003 the applicant’s counsel lodged a complaint with the district prosecutor’s office about the applicant’s ill-treatment by the police officers from the district police department. An inquiry was carried out in connection with that complaint. Several police officers were questioned. They all denied the applicant’s allegations of ill-treatment. 58. On 27 January 2003 the district prosecutor’s office decided, relying on their statements and medical expert certificate no. 181 of 7 October 2002, to dispense with criminal proceedings in respect of the applicant’s allegations of ill-treatment owing to the absence of evidence that any crime had been committed. The applicant did not appeal against the decision in court. 59. On 4 December 2003 the district prosecutor’s office received a complaint from the applicant’s mother about alleged ill-treatment of the applicant by the officers of the district police department. 60. On 5 December 2003 a decision not to prosecute the police officers was taken. The Court has not been furnished with a copy of that decision. It does not appear that the applicant attempted to challenge the decision in question before a court. 61. On 11 August 2005 the district prosecutor’s office quashed the decision of 5 December 2003 and ordered an additional inquiry. 62. During that inquiry Mr A., the head of the investigation department, responsible for the investigation of Ms Sh.’s murder at the time of the events in question, and Mr Z., deputy head of the temporary holding facility of the district police department at the material time, were interviewed. They stated that no physical or psychological pressure had ever been exercised on the applicant and that the applicant had voluntarily confessed to the murder and later confirmed his self-incriminating statements during an interview in the presence of his lawyer. 63. On 18 August 2005 the district prosecutor’s office, with reference to the aforementioned statements of Mr A. and Mr Z., decided not to institute criminal proceedings in connection with the applicant’s allegations owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. The applicant did not appeal against that decision in court. 64. On 6 February 2006 the prosecutor’s office of the Stavropol Region quashed the decisions of 27 January 2003 and 18 August 2005 as unlawful and unfounded in view of the investigating authorities’ failure to establish all the relevant facts. In particular, it pointed out that the applicant had not been questioned; that the materials of the inquiry lacked an extract from the official records of requests for medical aid in the period from 3 to 6 October 2002; that the register of detainees of the temporary holding facility, where the applicant had been held during the relevant period, had not been examined with a view to establishing when and by whom the applicant had been taken out of his cell(s) for interrogation and to identifying who had been in the cell(s) with him so that they could be questioned in respect of his allegations; that a police officer who had been present when the applicant had signed his confession had not been questioned in that connection; that another police officer who had drawn up the administrative offence record in respect of the applicant had not been questioned in that connection; and that Mr R. and Mr S., who had allegedly shared a cell with the applicant, had not been interviewed either. The district prosecutor’s office was thus ordered to eliminate those defects in the course of an additional inquiry. 65. In a decision of 15 February 2006 the district prosecutor’s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions. 66. According to the decision, when interviewed during an additional inquiry, the applicant had stated that on 2 October 2002 he had been taken from his home to a police station where he had met police officers G. and B. The latter had drawn up, on Mr G.’s instructions, an administrative offence record which stated that that the applicant had used obscene language in public. The applicant had been held at the police station from 4 p.m. to 10 p.m. and then transported to the district police department. On 3 October 2002 he had been placed under administrative arrest for five days and placed in the temporary holding facility of the district police department. Each night the officers of the Kirovskiy district police department, Mr A. and Mr G., had taken him to an office on the third floor in which they had subjected him to psychological pressure. On 6 October 2002, because of that pressure, he had been compelled to make a written confession to the murder of Ms Sh., which had been dictated to him by Mr G. 67. The decision went on to quote police officer A., who had stated that he had been present when his subordinates, Mr P. and Mr G., had interviewed the applicant. No physical or other form of coercion had been used on the applicant, who had voluntarily confessed to the murder and then confirmed his statements in the presence of his counsel. 68. Mr Z., deputy head of the temporary holding facility of the district police department at the material time, had stated that no force had ever been applied to the applicant, who had made no complaints during his detention in that facility. Mr Z. also stated that the applicant, Mr R. and Mr S. had never been held in the same cell at the same time. 69. Mr G. had stated that on 6 October 2002 he had been told that the applicant wished to see him. He had met the applicant at the temporary holding facility. The applicant had told him that he had killed Ms Sh. and had voluntarily written out his confession. 70. Mr B. had stated that on 2 October 2002 Mr M. had complained to him that the applicant had sworn at him. He had drawn up an administrative offence record and sent it to the court. 71. Mr R., who had been detained in the temporary holding facility from 1 to 6 October 2002 for committing an administrative offence, had confirmed that he had shared a cell with the applicant and stated that the applicant had not made any complaints concerning the police officers who had questioned him. Mr S., another detainee during the relevant period, had also been interviewed but had not given any relevant information regarding the applicant’s allegations. 72. The decision then indicated that, according to the temporary holding facility records concerning medical aid, the applicant had never applied for medical assistance. Nor had he made any complaints concerning his health. 73. The decision further stated that, according to the temporary holding facility register of detainees, the applicant had been taken out of his cell on 4 October 2002 at 6.45 p.m. by Mr G. and brought back at 6.50 p.m.; on the same day he had been taken away at 9.40 p.m. by Mr P. and brought back at 9.55 p.m. On 7 October 2002 the applicant had been taken out of his cell from 9 a.m. until 6.15 p.m. for the examination of his statements on the scene of the crime. For the rest of the time the applicant had stayed in his cell. 74. The decision thus concluded that during the inquiry the applicant’s allegations of ill-treatment had proved unfounded. The applicant did not appeal against that decision in court. 75. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”). 76. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112). 77. The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage. 78. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum length of detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 79. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 80. In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16). 81. It also stated that, within the meaning of Article 255 § 2 of the Code, the period after conviction by the first-instance court until such conviction became final, being upheld on appeal, could not be taken into account for the purpose of calculating the six-month period of an individual’s detention pending trial (paragraph 26).