CASE OF VLADIMIR KRIVONOSOV v. RUSSIA
Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13;No violation of Art. 3;No violation of Art. 5-1
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicant was born in 1968 and lives in Taganrog, the Rostov Region. 5. On 18 December 1998 the applicant was arrested and allegedly beaten up by the police officers. On the same day he was remanded in custody on suspicion of robbery. 6. On 21 December 1998 the charges were brought against the applicant and he was provided with a legal-aid counsel. 7. On 14 March 2000 the applicant was released on a written undertaking not to leave the town. 8. On 13 June 2000 the Rostov Regional Court convicted the applicant of robbery and imposed a suspended sentence of five years' imprisonment on him. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial. 9. On 14 May 2001 the Rostov Regional Court convicted the applicant of fraud, kidnapping, illegal deprivation of liberty, extortion, burglary and theft and sentenced him to seven years and six months' imprisonment. The applicant was taken straight from the courtroom to the detention unit. 10. On 16 January 2002 the Supreme Court of Russia quashed the judgment of 14 May 2001 on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 11. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”. 12. On 1 July 2002 the Rostov Regional Court extended the applicant's detention until 1 October 2002. “The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes. They have been in custody: ..., [the applicant] – since 18 December 1998, ... The Prosecutor requested that the defendants' detention be extended by 3 months. Having examined the Prosecutor's request, and having heard the parties to the proceedings, the court considers it necessary to extend the defendants' detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences. Under Articles 255 and 256 of the Russian Code of Criminal Procedure, the defendants' detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.” 13. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified. 14. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant's detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the decisions was identical to that applied in the decision of 1 July 2002. 15. The applicant appealed against each of the above-mentioned extension orders of the Supreme Court arguing that they were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above-mentioned decisions on appeal. 16. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant's detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court. 17. On 10 March 2005, that is, after the applicant's conviction by the Regional Court (see paragraph 19 below), the Supreme Court of Russia discontinued the examination of the applicant's appeal because he had been convicted in the meantime by the Regional Court. 18. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over fifty occasions: at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; owing to the illness of the representatives and their failure to appear before the court; and owing to the illness of the co-defendants or following their complaints concerning their health. On one occasion the hearing was adjourned on account of the failure of the authorities to transport the defendants to the courtroom. 19. On 17 May 2004 the Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., found the applicant guilty of multiple counts of fraud, kidnapping, illegal deprivation of liberty, extortion, theft and burglary and sentenced him to six years' imprisonment. 20. The applicant lodged an appeal. He claimed, inter alia, that the lay judges had sat on the bench unlawfully. The law had been changed and after 1 January 2004 lay judges were no longer permitted to take part in the administration of justice. 21. On 10 March 2005 the Supreme Court of Russia, sitting as a bench of three judges, reduced the applicant's sentence to five years' imprisonment and upheld the rest of the judgment on appeal. One of the judges of the Supreme Court had previously examined the applicant's case on appeal on 2 November 2000 (see paragraph 8 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant's detention until 26 September 2003 (see paragraphs 14-15 above). One other judge had previously examined the applicant's case on appeal on 16 January 2002 (see paragraph 10 above). As to the applicant's allegation that the composition of the tribunal was unlawful, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial. 22. From 25 May to 8 December 2001 and from 11 February 2002 to 23 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in the following cells: (a) cell no. 21 measuring 54.5 square metres and designed to accommodate 13-16 detainees; (b) cell no. 46 measuring 59.6 square metres and designed to accommodate 13-16 detainees; (c) cell no. 48 measuring 54.2 square metres and designed to accommodate 10-15 detainees; (d) cell no. 57 measuring 68.4 square metres and designed to accommodate 16-18 detainees; (e) cell no. 90 measuring 58.2 square metres and designed to accommodate 16-18 detainees; (f) cell no. 92 measuring 46.2 square metres and designed to accommodate 12-14 detainees; (g) cell no. 109 measuring 54.2 square metres and designed to accommodate 11-14 detainees; (h) cell no. 114 measuring 44.5 square metres and designed to accommodate 10-12 detainees; and (i) cell no. 84 (punishment cell) measuring 6.6 square metres and designed for one person. 23. The Government were unable to provide any precise information on the number of persons detained together with the applicant, because the relevant documents had been destroyed following the expiration of the time-limit for storing them. They submitted, however, that the design capacity of the cells had not been exceeded. 24. In each cell the applicant had an individual bed and was provided with bedding (two bed sheets, a pillowslip, a blanket, a mattress and a pillow) and tableware (a cup, a spoon and a plate). 25. The dimensions, number and location of the windows in the cells corresponded to the established legal norms and allowed sufficient access of daylight. Until December 2002 the windows were covered with metal screens (жалюзийные решетки) installed to prevent communication between cells. 26. The cells were illuminated with 60-75 watt filament lamps (four lamps per regular cell, one lamp per punishment cell), which were on from 6 a.m. to 10 p.m. At night-time the cells were lit by 60-75 watt security lights with tinted glass shades. 27. All cells were ventilated by a system of exhaust ventilation. Natural ventilation through windows was also available. 28. The cells were equipped with potable water tanks, cupboards for storage of foodstuffs, lavatory pans separated from the main area of the cells by partitions, water taps, dining tables and benches corresponding to the number of detainees, radio receivers, electric plugs and ventilation equipment. 29. The food was served three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility. 30. The applicant was allowed a daily one-hour outside walk in a specially equipped exercise yard. 31. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 7 November 2008 and statements by prison wardens (although not dated). They also submitted documents attesting to the destruction of registration logs in respect of the cells in IZ-61/1 (журналы покамерного размещения) for the years 20012003 following the expiry of the three-year time-limit for storing them. 32. The applicant claimed that the number of detainees exceeded the design capacity of the cells by three to five times and that the detainees had to sleep in shifts. 33. Most cells where the applicant was detained were equipped with a small window. Access to daylight was restricted by metal screens and the arrangement of the bunks in two or three tiers. 34. The electric lighting was too dim to enable the inmates to read. 35. The ventilation system did not function most of the time. 36. The bedding was hardly ever changed; no tableware, toilet paper or personal hygiene items were provided to the applicant. 37. The food was scarce and of poor quality. It was always poorly presented. 38. The exercise yards were unequipped and too small to accommodate all the detainees properly. 39. In support of his statements the applicant produced written depositions by four former cellmates who had been detained with him in different cells between 2001 and 2005. In particular, Mr B. stated that he had been detained with the applicant in cell no. 90. The population of the cell had exceeded its design capacity by three to five times. Mr G. stated that he had been detained with the applicant in cell no. 109, which accommodated from 22 to 46 detainees at any one time. Mr F. stated that he had been detained with the applicant in cell no. 109 in a later period. The cell used to accommodate up to 105 detainees. Finally, Mr V. submitted that he had been detained with the applicant in cell no. 114, which accommodated from 25 to 40 detainees. All of the above-mentioned witnesses testified that they and the other detainees had slept in shifts. They further testified to the appalling sanitary conditions in the cells, poor access to daylight, inadequate electric lighting, absence of natural ventilation and malfunctioning of the artificial ventilation system. The applicant further submitted a photograph of cell no. 114, taken on an unspecified date in 2004, in support of the above-mentioned statements. 40. The Government submitted that the detention unit (конвойное помещение) of the Rostov Regional Court is situated in the semi-basement of the premises. It has eight individual cells measuring 1-1.5 square metres and three collective cells measuring six, ten and twelve square metres and designed for two, six and eight detainees respectively. The detention unit is equipped with two lavatory pans and wash stands (one for detainees and one for those escorting them). All cells are equipped with benches, artificial ventilation and central heating. The cells are illuminated with filament lamps. The detainees are provided with dry rations (сухой паек) when taken to the courthouse. They receive hot food in accordance with the schedule before their departure from, and after their return to, the detention facility. 41. The Government supported their submissions with the results of an inspection of the technical equipment of the premises of the Rostov Regional Court of 21 March 2008, a certificate issued by the director of IZ61/1 on 7 November 2008, the results of an inspection of the detention unit of the Rostov Regional Court of 12 November 2008 and recent photographs of the inspected premises (photocopies). 42. The applicant submitted that between 2001 and 2004 he had been transported between the Rostov Regional Court and the detention facility on over one hundred and seventy-five occasions. 43. The journey to and from the courthouse took several hours. 44. At the courthouse the applicant was detained in a small windowless cell without ventilation or heating. The cell was not equipped with a lavatory or a wash stand. 45. No food was provided to the applicant at the courthouse. 46. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 47. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP). 48. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6). 49. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). 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 91 of the old CCrP, Article 99 of the new CCrP). 50. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 51. The Codes distinguished between two types of detention: the first being “pending the investigation”, that is, while a competent agency – the police or a prosecutor's office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 52. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 53. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 54. Access to the case-file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 55. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 56. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”). 57. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence. 58. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, 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). 59. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 66 below) (Article 331 in fine). 60. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10). 61. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 62. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 63. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 66 below). 64. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 65. The duration of the trial is not limited. 66. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374). 67. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15). 68. The new CCrP does not provide for the participation of lay judges in the administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 69. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing. 70. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 71. On 4 May 2001 the Ministry of Justice adopted the Rules on food supplies for convicts and persons detained in remand centres. According to Annex no. 3 to the 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 for the duration of their stay in patient care institutions; and convicted juveniles. The Rules were amended in 2004 and repealed in 2005. 72. On 4 February 2004 the Ministry of Justice adopted the Rules on supplies of dry rations, 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 and tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration. 73. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 sq. m. It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO no. 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony no. 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private 'because they know that all complaints usually pass through the colony's administration'. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”