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Судебное дело "Борисов против России"


Statement of Facts and Questions to the Parties in Borisov v. Russia case

 

04.12.2009

 

   4 December 2009

                               FIRST SECTION

                          Application no. 12543/09
                     by Vyacheslav Viktorovich BORISOV
                               against Russia
                         lodged on 13 January 2009

                             STATEMENT OF FACTS

   THE FACTS

   The  applicant,  Mr  Vyacheslav  Viktorovich  Borisov,  is  a  Russian
   national who was born in 1964 and lives in Yekaterinburg.

   A.  The circumstances of the case

   The  facts  of  the  case,  as  submitted  by  the  applicant,  may be
   summarised as follows.

   1. Criminal proceedings

   On  1  September  2008 the Chkalovskiy District Court of Yekaterinburg
   convicted the applicant of aggravated fraud and sentenced him to seven
   years' imprisonment.

   The  applicant  appealed.  On  21 November 2008 he was escorted to the
   court  house  but  for  unknown reasons was not allowed into the court
   room  and  could  not participate in the hearing. By a judgment of the
   same  date  the  Sverdlovsk  Regional  Court  upheld his conviction on
   appeal.

   On 19 January 2009 the investigating authorities charged the applicant
   with another criminal offence.

   2. Conditions of detention

   On  1  September 2008 the applicant was remanded in custody and placed
   in remand centre no. IZ-66/1 of Yekaterinburg.

   He  was  held  in  cell  no.  27  that  measured  30 square metres and
   accommodated  from  22  to  45 inmates. He frequently had to share his
   sleeping place with others.

   The cell was poorly lit and ventilated.

   The  toilet  pan  was  not  separated  from  the  living  area  by any
   partition.

   He was not provided with any toiletries and individual bedding.

   The nutrition was inadequate.

   The shower was allowed once in ten days.

   At  the  time  of submitting his application to the Court he was still
   detained in that remand centre.

   B.  Relevant domestic law

   Code of Criminal Procedure, in force since 1 July 2002

   Appeal  courts shall verify the legality, validity and fairness of the
   judgment of the trial court (Article 360 S: 1).

   A  convicted person held in custody who expressed a wish to be present
   at  the  examination  of  the  appeal shall be entitled to participate
   either  directly  in  the  court session or to state his case by video
   link.  The  court  shall  make  a decision with respect to the form of
   participation  of  the  convicted  person  in  the  court  session.  A
   convicted  person  who  has  appeared before the court shall always be
   entitled to take part in the hearing (Article 376 S: 3).

   COMPLAINTS

   The  applicant  complained  under  Article 3 of the Convention of poor
   conditions of detention.

   He  also  complained under Article 6 S:S: 1, 2 and 3 (b) of inequality
   of  arms,  various procedural violations, violation of his presumption
   of  innocence,  inadequate  time and facilities for preparation of his
   defence   and   the  authorities'  failure  to  ensure  his  right  to
   participate in the appeal hearing.

   He  finally  complained under Articles 13 and 14 of the Convention and
   Protocol  No.  12  to  the Convention of lack of domestic remedies and
   discrimination.

                          QUESTIONS TO THE PARTIES

   1. In respect of each cell in which the applicant was held in IZ-66/1:

   (a)  Indicate the cell number and the dates of the applicant's stay.

   (b)  What was the floor surface of the cell (in square metres)?

   (c)  How  many  bunk beds and/or sleeping places were available in the
   cell?

   (d)  How  many  detainees  were held in the cell? Indicate the maximum
   number of detainees, not the average.

   (e)  Was the cell equipped with a functioning mandatory ventilation?

   (f)  What  kind of lighting was available in the cell? If the lighting
   was  natural,  indicate the dimensions of the window(s) and the number
   and  thickness of metal bars; if the lighting was artificial, indicate
   the number of bulbs and their power.

   (g)  Indicate  the  placement of the toilet pan (corner, wall-mounted,
   etc.)  and the distances between (i) the pan and the dining table; and
   (ii) the pan and the nearest sleeping place.

   (h)  Was  there a partition separating the toilet pan from the rest of
   the cell? Indicate its height and the material it was made of.

   (i)  Indicate  the  frequency  of outdoor exercise, the surface of the
   exercise  yard  (in  square metres) and the type of the roof above the
   yard (metal bars, solid roof, netting, etc.)

   2.  In  the  light  of  the  replies  to the above questions, were the
   conditions  of  the applicant's detention compatible with Article 3 of
   the Convention?

   3.  Having  regard to the requirement of Article 376 S: 3 in fine that
   an  accused  who was brought to the courthouse be allowed to take part
   in  the  appeal  hearing  and to the allegation that the applicant was
   present  at  the  courthouse  of  the  Sverdlovsk Regional Court on 21
   November 2008 but not permitted to enter the hearing room, was there a
   violation of Article 6 S:S: 1 and 3 (c) of the Convention?

   


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