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Судебное дело "Захаркин против России"


Захаркин против России (на английском языке)

 

17.06.2010

 

                               FIRST SECTION

                        CASE OF ZAKHARKIN v. RUSSIA

                         (Application no. 1555/04)

                                  JUDGMENT

                                 STRASBOURG

                                10 June 2010

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 2  of  the  Convention.  It may be subject to editorial
   revision.

   In the case of Zakharkin v. Russia,

   The  European  Court  of  Human  Rights  (First Section), sitting as a
   Chamber composed of:

   Christos Rozakis, President,
   Nina Vaji,
   Anatoly Kovler,
   Khanlar Hajiyev,
   Sverre Erik Jebens,
   Giorgio Malinverni,
   George Nicolaou, judges,
   and Sren Nielsen, Section Registrar,

   Having deliberated in private on 20 May 2010,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  The  case  originated  in an application (no. 1555/04) against the
   Russian  Federation  lodged  with  the  Court  under Article 34 of the
   Convention for the Protection of Human Rights and Fundamental Freedoms
   ("the  Convention")  by  a  Russian  national, Mr Valeriy Alekseyevich
   Zakharkin ("the applicant"), on 2 December 2003.

   2.  The applicant was represented by Ms A. Demeneva, a lawyer with the
   Urals  Centre for Constitutional and International protection of Human
   Rights.  The  Russian  Government  ("the  Government")  were initially
   represented  by  Ms V. Milinchuk, former Representative of the Russian
   Federation  at the European Court of Human Rights, and subsequently by
   their Representative, Mr G. Matyushkin.

   3.  The applicant alleged, in particular, that he had been detained in
   appalling  conditions,  that he had not received adequate medical care
   in  detention,  that  the  criminal  proceedings  against him had been
   unfair  and  that  the effective exercise of his right of petition had
   been hindered by the authorities.

   4.  On  9  June  2008  the  President  of the First Section decided to
   communicate  the  above  complaints  to  the  Government.  It was also
   decided  to  examine the merits of the application at the same time as
   its admissibility (Article 29 S: 3).

   5.  On  23  November  2009  the  President made a decision on priority
   treatment of the application (Rule 41 of the Rules of Court).

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   6.  The  applicant was born in 1970. He is now serving his sentence in
   the Perm Region.

   A.  The  applicant's  arrest  and  detention  at the police station on
   15 and 16 October 1999

   7.  On  15 October 1999 the applicant was arrested in Yekaterinburg on
   suspicion  of  robbery.  He  was allegedly beaten up by the police. At
   about  midnight  he was put in a cell at the Kirovskiy District police
   station.

   8.  The  applicant  stayed  in  the cell until 5.40 p.m. on 16 October
   1999.  The cell was not equipped with a bunk or a bench. The applicant
   remained  handcuffed  all  the time. He was not given any food and was
   escorted to the toilet only once, in the morning.

   9.  By  letter  of  11  June  2003, the head of the Kirovskiy District
   police station of Yekaterinburg confirmed that the cells in the police
   station  were  not  equipped  with bunks or benches and that detainees
   were not provided with food.

   B.  The applicant's detention in the temporary detention facilities in
   Yekaterinburg and Ozersk from 16 October to 25 November 1999

   10.  On   16  October  1999  the  applicant  was  transported  to  the
   Yekaterinburg temporary detention facility.

   11.  A  certificate  issued  on  29  August  2002 by the doctor of the
   Yekaterinburg   temporary   detention   facility  indicates  that  the
   applicant  was  held  in  the  facility  from 16 to 25 October 1999. A
   medical  examination  revealed a bruise on his right eye and abrasions
   on his face.

   12.  On 25 October 1999 the applicant was transferred to remand centre
   no. IZ-66/1 in Yekaterinburg.

   13.  On  2  November  1999 he was escorted to the prosecutor's office,
   where  he  was questioned. After questioning he was transported to the
   Ozersk  Town  temporary detention facility in the Sverdlovskiy Region.
   On  his  way there the escorting officers allegedly beat him and urged
   him to confess. Once in the detention facility, the applicant signed a
   confession statement.

   14.  The  applicant  remained  in  the Ozersk Town temporary detention
   facility  until  25  November  1999.  He  was  held in a solitary cell
   measuring  2 sq.  m.  The  cell was not equipped with a bunk or toilet
   facilities.  The  applicant was escorted to the toilet twice a day. He
   was given bread and tea three times a day. The window allegedly had no
   glazing and it was extremely cold in the cell. A certificate issued by
   the   Federal   Meteorological  Service  indicates  that  the  outside
   temperature in November 1999 ranged from 6 C to - 21 C.

   15.  On  25  November  1999  the  applicant  was transported to remand
   centre  no. IZ-66/1 in Yekaterinburg, where he remained for the entire
   duration of the criminal proceedings against him.

   16.    On  2 and 3 December 1999 the applicant allegedly complained to
   the prosecutor's office that he had been ill-treated by the police. He
   did  not  receive  any  reply.  He  did  not  produce  copies  of  his
   complaints.

   C.  The criminal proceedings against the applicant

   17.  The  trial  started  on  18  December  2001  in  the Sverdlovskiy
   Regional  Court.  It transpires from the trial record that on 20 March
   2002 the presiding judge Ms G. chose by lot, from a list of ten names,
   two  lay  judges and a substitute lay judge to examine the applicant's
   case.  The  formation thus included the presiding judge Ms G., two lay
   judges, Ms T. and Ms O., and a substitute lay judge, Ms Ye.

   18.  On  19  September  2002 the Sverdlovskiy Regional Court convicted
   the applicant of several counts of armed robbery, murder and attempted
   murder  of  a  policeman  and  sentenced him to life imprisonment. The
   applicant  appealed,  complaining,  in particular, about the allegedly
   unlawful composition of the trial court.

   19.  On  3  June  2003  Ms Perevoshchikova, counsel for the applicant,
   asked the President of the Sverdlovskiy Regional Court for information
   about  the appointment and terms of office of the lay judges Ms T., Ms
   O.  and  Ms Ye. On 17 July 2003 a deputy President of the Sverdlovskiy
   Regional  Court  replied  that all judges of the Sverdlovskiy Regional
   Court  were  competent  to  try  criminal  cases at first instance. He
   disclosed  no  details  about  the  appointment  procedure or terms of
   office of the lay judges.

   20.  On  28  August  2003  the Supreme Court of the Russian Federation
   rejected  the  applicant's  request to allow the lawyer Ms Demeneva to
   act  as  his  counsel,  on the grounds that she was not a professional
   advocate  and was not present at the appeal hearing. It was also noted
   that the applicant was represented by Ms Perevoshchikova, counsel. The
   court  then examined the applicant's appeal and upheld the conviction.
   It  held  that no breach of the rules on the appointment of lay judges
   had been established.

   21.  On  8  September  2003  counsel  for the applicant applied to the
   President  of the Sverdlovskiy District Court for permission to access
   copies  of  judgments  delivered  by  the  Sverdlovskiy District Court
   between  1999  and  2002, in order to verify whether the lay judges Ms
   T.,  Ms  O. and Ms Ye. had participated in other criminal cases during
   those years. She also asked the President whether the names of the lay
   judges  had  been drawn at random by lot as required by the Lay Judges
   Act.

   22.  By  undated  letter  the  President  of the Sverdlovskiy Regional
   Court  refused  access  to  the court's archives, stating that counsel
   could  only  study the applicant's case file. Ms T. and Ms O. had been
   appointed  as  lay  judges in 1993, while Ms Ye. had been appointed in
   1999. Their terms of office had been extended by presidential decrees.
   He  further  mentioned that the names of the lay judges had been drawn
   by lot, but refused to send a copy of the records.

   23.  On  30  September  2003  the  head  of  the  secretariat  of  the
   Sverdlovskiy  Regional  Legislature informed counsel for the applicant
   that  the list of lay judges for the courts of the Sverdlovskiy Region
   had  been complied in May 2000. Ms T., Ms O. and Ms Ye. did not appear
   on the 2000 lists.

   24.  On  8 February 2006 the Presidium of the Supreme Court, acting on
   supervisory  review,  quashed  the  appeal  judgment, finding that the
   applicant  had  not  been  notified of the date and time of the appeal
   hearing.  It  remitted  the  case  to  the  Supreme  Court  for  fresh
   examination on appeal.

   25.  On  31  July  2006  the  Supreme  Court  upheld the conviction on
   appeal.  It  held,  in particular, that the lay judges Ms T. and Ms O.
   had  been  appointed  in  1993  and that their term of office had been
   extended  by  presidential  decrees.  It  concluded  that  the court's
   composition  had  been  lawful.  The  applicant was represented by two
   lawyers of his choice.

   26.  The  documents  submitted by the Government show that on 25 March
   1999  the Sverdlovskiy Regional Legislature selected 551 lay judges to
   be  assigned to the Sverdlovskiy Regional Court. The list mentioned Ms
   Ye.,  but  not  Ms  T. or Ms O. By decisions of 18 and 25 May 2000 the
   Sverdlovskiy  Regional Legislature determined the number of lay judges
   to  be  selected  for  each district court. No actual selection of lay
   judges was made.

   D.  The  conditions  of  the  applicant's  detention  in remand centre
   no. IZ-66/1 in Yekaterinburg

   27.  From  25 November 1999 to 18 November 2003 the applicant was held
   in  remand centre no. IZ-66/1 in Yekaterinburg. On 18 November 2003 he
   was transferred to a correctional colony in the Vologda Region.

   1.  The  Government's description of the conditions of the applicant's
   detention

   28.  According to a certificate of 18 August 2008 issued by the remand
   centre  management and produced by the Government, until July 2002 the
   applicant was held in communal cells. It was not possible to establish
   the number of inmates in each cell, as the remand centre registers for
   that  period  had  been  destroyed  on expiry of the statutory storage
   time-limit.  From  6 July  2002  to 18 November 2003 the applicant was
   held  in  solitary  cells.  Cell no. 210 measured 6 sq. m, cell no. 32
   measured  4.5  sq.  m,  cell  no.  1  measured 4 sq. m and cell no. 10
   measured 7 sq. m.

   29.  The Government submitted, relying on certificates dated 18 August
   2008  from  the  remand  centre  management,  that  all the cells were
   naturally  illuminated and ventilated through the windows. The windows
   in  all  the  cells  were  glazed. They had no blinds or other screens
   preventing  the  access of natural light. Moreover, all the cells were
   fitted  with  fluorescent lamps which functioned during the day and at
   night.  The  cells  were equipped with central heating and the average
   temperature inside was above 20 C in winter and above 18 C in summer.

   30.  It  follows  from  the  same  certificates that all the cells had
   toilet  facilities  which were not separated from the living area by a
   partition  as "there was no such requirement under [domestic law]". It
   was,  however,  possible  to  screen  the  toilet  facilities off by a
   curtain.  The  dining  table  and  the beds were situated at least two
   metres  away  from  the  toilet  facilities.  There were no insects or
   rodents  in the remand centre, as all the cells were disinfected every
   month.  The applicant was allowed to take a shower once a week and was
   provided  at  that  time with clean bedding. He was also supplied with
   boiled drinking water and wholesome hot food three times a day. He had
   an  hour-long  daily walk. Occasionally the duration of the daily walk
   was   shortened  to  thirty  minutes.  In  reply  to  the  applicant's
   complaints,  the  warders  responsible  for  that  omission  had  been
   reprimanded. Pursuant to an order by the governor of the remand centre
   the applicant, who was considered dangerous, was handcuffed when taken
   to the exercise yard.

   31.  In  addition to the certificates of 18 August 2008 the Government
   also  produced  certain  documents  dating  from  the  period  of  the
   applicant's detention in remand centre no. IZ-66/1 in support of their
   description  of  the  conditions  of the applicant's detention. Hence,
   they  submitted  a  letter  of  16 October  2002 addressed to a deputy
   prosecutor  of  the  Sverdlovskiy  Region  in which the chief sanitary
   inspector  of  penitentiary institutions stated that the applicant was
   currently  held  in  cell  no.  32.  The  cell measured 6.5 sq. m, was
   illuminated  artificially  by  fluorescent lamps and was equipped with
   central  heating  and sewerage facilities. The average temperature was
   18  to  20  C and the humidity was "subjectively normal". The cell was
   equipped  with a bunk and the applicant was provided with bedding. The
   inspector  added  that  the applicant had been previously held in cell
   no.   210,   which   measured   8.8  sq.  m  and  possessed  the  same
   characteristics.

   32.  The  Government  also  submitted a decision of 1 November 2002 by
   the  governor  of  the  remand  centre  ordering that the applicant be
   handcuffed  every  time  he was let out of his cell, including when he
   was taken to the visitors' room, the exercise yard or the shower room.
   He  noted  that  the applicant had been sentenced to life imprisonment
   and  had  been  registered  as  a  person liable to escape, attack the
   warders  and take hostages. Accordingly, his handcuffing was necessary
   to protect the warders and escorting officers.

   33.  According  to  numerous  written  statements  from  the  warders,
   produced   by  the  Government,  the  conditions  of  the  applicant's
   detention  were  satisfactory.  He  was  provided with sufficient food
   three  times  a  day.  His  cells were clean, warm and dry. One of the
   warders,  Mr  I., stated that the applicant's cell was one of the best
   in the remand centre. He continued:

   "One  day  in  December  2002  [the  applicant]  asked  for a piece of
   material  that he might use to insulate his window. The window was not
   glazed  and  it  was  covered  by a blanket. In principle, that had no
   impact  on  the  temperature  in cell no. 10 where [the applicant] was
   held.  It  was  very  warm  in the cell... [the applicant] was given a
   piece of polythene...

   [The  applicant]  always  wears  handcuffs  on the way to the exercise
   yard, but in the yard the handcuffs are removed..."

   34.  Finally,   without  relying  on  any  documents,  the  Government
   submitted  that  one  of the solitary cells in which the applicant was
   held,  cell  no.  10,  measured  5.2  sq. m. The windows in the remand
   centre  were not covered with blinds, these having been removed before
   25  December  2002.  The  toilet facilities were equipped with a flush
   system and were separated from the living area by a partition.

   2.  The applicant's description of the conditions of his detention

   35.  From  25  November  1999 to 6 July 2002 the applicant was held in
   various  cells in buildings nos. 2 and 3 in remand centre no. IZ-66/1.
   Each  cell  accommodated  from twenty-five to thirty-five inmates. All
   the cells were overcrowded.

   36.  On 6 July 2002 the applicant was placed in solitary cell no. 210.
   The  cell  measured  3.2  sq.  m. It had concrete walls and floor. The
   window  was  covered with a metal screen with eight ventilation holes.
   The  toilet  was  not separated from the living area. There was no hot
   running water in the cell.

   37.  On  25  September  2002 the applicant was transferred to solitary
   cell  no. 32,  post  13,  in  the basement, where he remained until 14
   October  2002.  All  his  personal belongings, including warm clothes,
   were  taken  away from him and he was given dirty prison overalls. The
   cell  was 1.8 metres in width and 4.5 metres in length. The walls were
   covered  with mould, water was dripping from the ceiling and the floor
   was dirty with mud. There was no access to natural light or fresh air.
   There was no hot running water in the cell. The applicant, who was ill
   with arthritis, suffered as a result of the cold and the damp.

   38.  The applicant submitted photographs of cell no. 32 confirming his
   description.  The  photographs  show  bare  concrete  walls, floor and
   ceiling,  all  with  damp patches on them. The cell is equipped with a
   floor-level  toilet  with  a rusty water pipe with a tap in place of a
   flush  system.  There  is also a rusty sink alongside, with its outlet
   pipe  leading  to  the  toilet  outlet.  The toilet facilities are not
   separated  from  the  living  area.  Other  photographs show two rusty
   two-tier  metal beds, one of them covered with a dirty mattress, and a
   small  metal  shelf  used  as  a  dining  table.  There  are two small
   ventilation outlets immediately under the ceiling. There is apparently
   no window.

   39.  One  of  the  photographs shows a door vent about ten centimetres
   wide.  According  to the applicant, the food was handed to him through
   that  vent. The food parcels from his wife that could not pass through
   the vent were not given to him.

   40.  From  14 to 22 October 2002 the applicant stayed in solitary cell
   no. 1, post 31. It was stifling inside the cell as it had no window or
   ventilation device.

   41.  On 22 October 2002 the applicant was transferred to solitary cell
   no. 10,  post 31, in the basement, where he remained until 18 November
   2003.  The  cell  measured 1.7 metres in width and 2 metres in length,
   that  is,  3.4 sq. m. The dimensions of the window were 50 centimetres
   by  50  centimetres.  It  was  covered  with four metal grilles placed
   behind  one  another  and blocking access to natural light. The window
   had  no  glazing  and  it  was  extremely  cold in the cell during the
   winter.  At  the  applicant's  request the warders gave him a piece of
   polythene  to  insulate  the window. A certificate issued by a private
   meteorological  company  indicates  that  the  outside  temperature in
   October, November and December 2002 ranged from 9 C to - 30 C.

   42.  The applicant submitted photographs of cell no. 10 confirming his
   description.  The  concrete  walls of the cell are indeed covered with
   damp  patches.  There is no lavatory bowl; instead, there is a hole in
   the  floor  at  the corner of the cell. There is no sign of a flush or
   other  washout  system.  The  toilet  is not separated from the living
   area.  Next  to  the  toilet, there is a rusty sink and a small dining
   table.  A  two-tier  metal  bed is placed along the opposite wall. The
   only window is an aperture in a thick concrete wall with several metal
   bars placed behind one another.

   43.  Finally, according to the applicant, he was handcuffed every time
   he  was let out of his cell and taken to the exercise yard. Given that
   on  some  days the air temperature was below zero, the metal handcuffs
   hurt  his  hands.  His  daily  outdoor  exercise was on many occasions
   curtailed to half an hour instead of the one hour prescribed by law.

   3.  The applicant's complaints about the conditions of his detention

   44.  The  applicant submitted copies of his numerous complaints to the
   supervising  prosecutor,  together with the replies he received. Thus,
   on  27 and 30 September, 1, 4, 7, 8, and 11 October 2002 the applicant
   and  his  counsel  complained  to the supervising prosecutor about the
   appalling  conditions  of  the applicant's detention in cells nos. 210
   and  32.  In  particular, the applicant complained that the cells were
   cold,  dark and humid, and that his personal belongings had been taken
   away  from  him.  In  the complaint dated 8 October 2002 the applicant
   also  alleged  that  his  daily outdoor exercise had been shortened to
   half an hour and that he was handcuffed while in the exercise yard.

   45.  On  30  September  2002 the governor of remand centre no. IZ-66/1
   replied  that  the  applicant's cell measured 4 sq. m and that all the
   sanitary norms were met.

   46.  By  letter  of 30 October 2002 the supervising prosecutor replied
   that the applicant's conditions of detention were satisfactory and met
   the established norms. In particular, cell no. 210 measured 8.8 sq. m,
   while  cell  no.  32  measured  6.5  sq. m. The cells were illuminated
   artificially.  The  temperature ranged between 18 and 20 degrees above
   zero  and the humidity was "subjectively normal". He conceded that the
   applicant's  personal  belongings  had been taken from him unlawfully,
   but  noted  that  they  had been returned to him on 3 October 2002. He
   also  acknowledged  that the applicant's handcuffing on his way to the
   exercise  yard  had  been unlawful and informed the applicant that the
   warders had been disciplined.

   47.  In December and January 2002 the applicant and his counsel lodged
   several  more complaints with the supervising prosecutor. They alleged
   that  it  was  very  cold in cell no. 10 as the window had no glazing.
   They  also  complained about the insufficient outdoor exercise allowed
   to  the  applicant  and  about  his  handcuffing  while  he was in the
   exercise  yard.  They  further  claimed  that  the  amount of food was
   inadequate,  that  the  applicant  was  not allowed to buy food in the
   facility's  shop  and that food parcels from relatives were limited to
   30  kg  per  month.  They  complained  that  on  several occasions the
   applicant  had  not been given any food during the entire day and that
   sometimes the warders withheld food parcels brought by the applicant's
   wife.  Lastly,  the applicant alleged that his personal television set
   had been taken away from him.

   48.  On 16 January 2003 the governor of detention facility no. IZ-66/1
   replied   that   the   applicant's   conditions   of   detention  were
   satisfactory.

   49.  In  reply to further complaints by the applicant, the supervising
   prosecutor  acknowledged  on  20 January 2003 that the duration of his
   daily  outdoor  exercise  had  been unlawfully restricted. However, he
   considered that it was necessary to handcuff the applicant when he was
   taken  to  the  exercise  yard,  in  order  to  protect  the escorting
   officers. He also informed the applicant that owing to staff shortages
   it was not possible to provide him with hot food every day.

   50.  On  5  May  2003  the  applicant  complained  to  the supervising
   prosecutor  that  it  was  stifling  inside  his  cell and that it was
   swarming  with  rats  and mice. He further alleged that the toilet was
   not  separated  from the living area and that when using the toilet he
   was  in  full view of the warders, many of whom were women. It appears
   that the complaint remained without reply.

   51.  On  15 September 2003 counsel for the applicant complained to the
   supervising  prosecutor that on 11 September 2003 a piece of polythene
   which  he  had  been  using to insulate the window had been taken away
   from  him  and  that it was cold in his cell because the window had no
   glazing.  The  prosecutor  of  the  Sverdlovskiy  Region  requested an
   explanation  from  the  head  of  the  penitentiary  department of the
   Svderdlovskiy Region. In his letter of 21 October 2003 the head of the
   penitentiary  department  stated that the windows in the remand centre
   were  currently  being glazed, and that therefore the inmates were not
   provided with polythene.

   E.  Medical assistance

   52.  In April 2001 the applicant was diagnosed with arthritis.

   53.  On  18  and 20 April 2001 he was examined by the doctor of remand
   centre  no.  IZ-66/1,  who  prescribed anti-inflammatory treatment for
   arthritis.

   54.  On  26 April 2001 the applicant was taken to prison hospital IK-2
   in  Yekaterinburg  (ОБ  при  ФБУ  ИК-2)  for  an  examination.  He was
   diagnosed  with  arthropathy  (a joint disease) of the knee, ankle and
   wrist joints. On 8 May 2001 he was discharged.

   55.  From  23  October to 8 November and from 4 to 6 December 2001 the
   applicant  underwent  further examinations in prison hospital IK-2. He
   was diagnosed with infectious allergic polyarthritis.

   56.  On  8  and 21 January 2002 the applicant complained to the remand
   centre  doctor  of  pain,  swelling and stiffness in the joints of his
   upper and lower limbs. The doctor confirmed the previous diagnosis and
   prescribed anti-inflammatory pills for arthritis.

   57.  In  May  2002  the  applicant  was  examined by the remand centre
   doctor,  who  prescribed  intra-muscular  injections for ten days. The
   medical  record  states  that ten injections were administered between
   21 May and 12 June 2002.

   58.  On  28  August  2002  the  applicant again complained of pain and
   swelling  in his arm, elbow, finger, knee and ankle joints. The remand
   centre  doctor  noted  that the applicant's disease was "long-standing
   and  persistent"  and  referred  him  for  examination  to  the prison
   hospital.

   59.  On  12  September  2002  the  applicant  was  admitted  to prison
   hospital  IK-2,  where  he  remained  until  17 September 2002. He was
   diagnosed  with rheumatoid arthritis and slow-progressing seronegative
   polyarthritis.  The  doctors  recommended that the applicant stay away
   from  cold and damp places, be examined by a rheumatologist and follow
   in-patient treatment.

   60.  On  5  November  2002  the  applicant  was  examined  by Dr L., a
   rheumatologist  from  the  Central  Town  Hospital.  She recommended a
   high-calorie diet and avoidance of exposure to cold. She noted that it
   was  unacceptable  to  restrict  the applicant's food intake. She also
   prescribed   treatment.   In  particular,  she  recommended  that  the
   applicant should take anti-inflammatory pills and apply ointments on a
   continuous   basis   and   should   follow   a   one-month  course  of
   hepatoprotective  treatment.  Regular  blood  counts and X-ray testing
   should  be  performed.  It  was,  however,  premature to prescribe any
   disease-modifying  drugs  (базисная  терапия)  or hormone therapy. She
   concluded  that further medical tests and constant medical supervision
   were necessary.

   61.  According  to  the  applicant,  he  did not receive any treatment
   except  analgesics  (painkillers)  and  several injections because the
   medical  unit  at  the  remand  centre  did  not  have  the  necessary
   medication.

   62.  In  reply  to  the complaints of insufficient medical assistance,
   the  governor  of  remand  centre  no. IZ-66/1 stated in writing on 16
   December 2002 that the applicant did not need in-patient treatment. As
   the  applicant  did not suffer from any serious diseases, his wife was
   not allowed to send him food parcels exceeding 30 kg per month.

   63.  On  the  same  day the applicant was examined by doctors from the
   medical  department  of  the  Ministry  of  Justice. They noted in the
   medical  records that the applicant's health was satisfactory and that
   he  was  receiving  vitamins.  The  doctors  also  noted  that further
   examinations in the prison hospital were necessary.

   64.  On  17  December  2002 a deputy head of the medical department of
   the Ministry of Justice informed the applicant's wife that the medical
   department had conducted an inquiry and established that the applicant
   was receiving sufficient and appropriate treatment for his disease.

   65.  On  8 January 2003 the applicant's wife complained to the medical
   department  of  the  Ministry  of  Justice  that the applicant was not
   receiving  any  medicine  except  painkillers.  As  a  result  of  the
   insufficient treatment provided, his disease had progressed.

   66.  On 10 January 2003 a deputy head of the medical department of the
   Ministry  of  Justice replied that the applicant's state of health was
   satisfactory.

   67.  In April 2003 the applicant underwent an X-ray examination.

   68.  On  27  May  2003 the applicant was for a second time examined by
   the  rheumatologist Dr L. The applicant complained of persistent pains
   in  his  joints.  Dr L. noted stiffness and swelling of certain joints
   and  limited  movement  of  the  right  elbow joint and the left wrist
   joint.  She further observed that her previous recommendations had not
   been followed and issued the same recommendations and prescriptions as
   before. She further prescribed local hormone injections once every ten
   to  fourteen  days  until the inflammation in the joints had lessened.
   Finally,  she  recommended  that  blood  and  urine  tests  should  be
   performed every month.

   69.  On an unspecified date (the date indicated in the medical records
   is unreadable) the applicant was examined by the remand centre doctor.
   He  complained of weakness, loss of weight and aggravation of the pain
   in  his  joints.  The  doctor  noted  in  the medical records that the
   applicant refused to take anti-inflammatory pills and insisted that he
   needed  intra-articular  injections.  The  doctor recommended that the
   applicant be taken to the prison hospital for an examination.

   70.  From  10  to  17 June and from 6 to 17 October 2003 the applicant
   underwent  an  examination  and  followed treatment in prison hospital
   IK-2.

   71.  In  reply to further complaints of inadequate treatment lodged by
   the  applicant's  wife,  the  head  of  the  medical department of the
   Ministry  of  Justice  stated  on  8 October 2003 that the applicant's
   state of health was satisfactory. He noted that the rheumatologist had
   recommended that the applicant take anti-inflammatory medicines, apply
   ointments  and  receive  intra-articular injections. The applicant had
   refused  to  take  the  anti-inflammatory medicines prescribed to him.
   Intra-articular  injections  were  not  possible because there were no
   medical  officers  in  the detention facility trained in administering
   them.  The  head  of the medical department of the Ministry of Justice
   concluded  that  the  applicant  was receiving adequate and sufficient
   treatment.

   72.  On  10  October  2003  Dr K., a rheumatologist from Yekaterinburg
   Town  Clinical  Hospital  no.  40,  examined  the  applicant's medical
   records and concluded that he was suffering from rheumatoid arthritis.
   The report continued as follows:

   "[Rheumatoid  arthritis]  is  a serious disease causing marked pain in
   the  joints  and  muscles and restricting the function of the affected
   joint.  It is progressive and incurable. The disease requires constant
   anti-inflammatory treatment to lessen the pain and inflammation in the
   joints   and   muscles.  It  also  requires  specific  treatment  with
   disease-modifying drugs to slow down the process of destruction of the
   joints. [The applicant] has not received any disease-modifying drugs.

   Owing  to  the destruction of the joint structures and muscle atrophy,
   this  disease  leads  to disability within 5 to 10 years of its onset,
   depending on the rate of progression.

   In cases where other internal organs are affected by the disease (this
   is possible in the absence of adequate treatment) it may progress more
   rapidly.

   The  analysis  of the submitted materials reveals that at present [the
   applicant]  is  affected  by  an active inflammation process which has
   resulted in loss of function in the joints.

   I  recommend  an  examination  ...  which  is  necessary  in  order to
   prescribe adequate treatment.

   [The  applicant] requires wholesome food rich in protein and vitamins.
   Damp and cold places are strongly contraindicated."

   73.  On an unspecified date the applicant lodged a civil claim against
   remand   centre   no.   IZ-66/1,   complaining   about  the  allegedly
   insufficient medical assistance afforded to him.

   74.  On   9   December  2003  the  Verkh-Isetskiy  District  Court  of
   Yekaterinburg  noted  that  the applicant suffered from arthritis. The
   management  of  the  remand  centre  had  an  obligation to organise a
   medical examination of the applicant in order to determine the gravity
   of  his  medical  condition. It had however failed to do so. Moreover,
   given  that  arthritis  was a serious disease requiring a high-calorie
   diet,  it  had  been  unlawful to limit food parcels from relatives to
   30 kg  per  month.  However, the court rejected the applicant's claim,
   finding  that  it was without substance as he was no longer being held
   in remand centre no. IZ-66/1.

   75.  On 9 January 2004 the applicant was granted disability status.

   F.  The applicant's contact with his representative Ms Demeneva

   76.  The  applicant  appointed  Ms  Demeneva,  a lawyer with the Urals
   Centre of Constitutional and International Protection of Human Rights,
   to  represent  him before the Supreme Court and the European Court. On
   27 November   2002  Ms  Demeneva  applied  to  the  President  of  the
   Sverdlovskiy  Regional Court for permission to visit the applicant. On
   28 November  2002  her request was refused. No reasons for the refusal
   were provided.

   77.  On  5 December  2002  Ms  Demeneva  for  a  second time asked the
   President  of  the  Sverdlovskiy  Regional  Court  to issue her with a
   visitor's  permit.  By  letter  of  11  December  2002  a judge of the
   Sverdlovskiy  Regional  Court  refused to admit Ms Demeneva as counsel
   for  the applicant. He noted that at that stage of the proceedings the
   admission of counsel was within the competence of the Supreme Court.

   78.  In  January 2003 Ms Demeneva lodged a new request for a visitor's
   permit  with  the  President  of  the Sverdlovskiy Regional Court. The
   request  indicated that Ms Demeneva was the applicant's representative
   before the Court. It appears that the request was not examined.

   79.  On  28 April and 14 May 2003 the applicant wrote to the President
   of  the  Sverdlovskiy  Regional Court, informing him that he wanted to
   meet  Ms Demeneva  in  order to prepare an application to the European
   Court  of  Human  Rights.  On  an  unspecified  date  in July 2003 the
   Sverdlovskiy  Regional  Court  issued  Ms  Demeneva  with  a visitor's
   permit.

   80.  On  23,  25  and  30  July  2003  Ms  Demeneva  came to visit the
   applicant.  However,  the  management  of  remand  centre  no. IZ-66/1
   refused to let her in. They did not give any reasons for the refusal.

   81.  In  reply to Ms Demeneva's complaint, the penitentiary department
   of the Sverdlovskiy Region informed her on 25 August 2003 that she had
   not  been  appointed  to  represent  the  applicant  in  the  criminal
   proceedings  and that her legal status was unclear. Therefore, she was
   not allowed to visit the applicant.

   82.  By  letter  of  15  September  2003  a  deputy  President  of the
   Sverdlovskiy  Regional  Court  informed the penitentiary department of
   the  Sverdlovskiy  Region  that  the applicant's conviction had become
   final  and  that  the  visitor's  permit  issued to Ms Demeneva was no
   longer valid.

   83.  On  3 November 2003 the Sverdlovskiy regional prosecutor's office
   informed  Ms Demeneva that she had been denied access to the applicant
   because she had not produced a judicial decision by which she had been
   admitted to act as counsel for the applicant.

   84.  The  applicant  challenged the refusals before the Verkh-Isetskiy
   District   Court   of   Yekaterinburg.   On   13   November  2003  the
   Verkh-Isetskiy  District  Court  found that Ms Demeneva had a power of
   attorney authorising her to represent the applicant's interests before
   the  European  Court  of  Human Rights and possessed a valid visitor's
   permit  issued  by  a  competent  court.  It ordered the management of
   detention  facility  no.  IZ-66/1 to organise the applicant's meetings
   with Ms Demeneva.

   85.  No  meetings  were  organised.  On 24 February 2004 the bailiffs'
   service  discontinued the enforcement proceedings, finding that it was
   no  longer possible to organise the meetings as the applicant had been
   transferred to a correctional colony.

   II.  RELEVANT DOMESTIC LAW

   A.  Lay judges

   1.  The RSFSR Code of Criminal Procedure

   86.  The  Code  of Criminal Procedure of the Russian Soviet Federalist
   Socialist Republic (Law of 27 October 1960, in force until 1 July 2002
   -  "the  old  CCrP")  provided that criminal cases were tried at first
   instance  by a single judge or by a bench consisting of a professional
   judge  and  two  lay  judges.  In  their  judicial capacity lay judges
   enjoyed the same rights as professional judges (Article 15).

   2.  The  RSFSR  Constitution  of  1978  (as  amended  by  Federal  Law
   no. 4061-1 of 9 December 1992)

   87.  By  virtue  of  Article 164 of the RSFSR Constitution of 1978 (in
   force  until  12  December  1993, when the Constitution of the Russian
   Federation  was  adopted),  lay judges were elected during meetings of
   citizens at their place of work or residence for a term of five years.

   3.  The RSFSR Judicial System Act

   88.  Under  section  29  of  the RSFSR Law of 8 July 1981 on the RSFSR
   judicial  system  ("the  RSFSR  Judicial  System  Act")  (the relevant
   provisions  remained  in  force  until  10 January  2000,  date of the
   official  publication  of the Federal Law on lay judges at the federal
   courts  of general jurisdiction in the Russian Federation), lay judges
   at  the regional courts were to be elected by the Regional Congress of
   People's Deputies for a term of five years.

   4.  The Constitution of the Russian Federation

   89.  On  12  December  1993 the Constitution of the Russian Federation
   was  adopted.  It does not provide for any procedure for the selection
   of lay judges.

   90.  Articles  83  and  84  of the Constitution list the powers of the
   President.  They  do not mention any power to appoint lay judges or to
   prolong their term of office.

   91.  Article  90  provides  that  the  President may issue decrees and
   orders.  Decrees and orders of the President have binding force in the
   entire  territory  of the Russian Federation. They may not be contrary
   to the Constitution or federal laws.

   92.  Part  2  of the Russian Constitution contains provisions aimed at
   preserving  the  continuity  of  the  judiciary and other State bodies
   during the transitional period. In particular, paragraph 6 establishes
   that until the adoption of a federal law setting out the procedure for
   the  examination  of  cases  by  a  jury,  the  previous procedure for
   examination  of  that  category  of  cases  by  the  courts  should be
   preserved.

   5.  The presidential decree of 22 March 1995

   93.  On  22  March  1995  the acting President of Russia issued Decree
   no. 299, which read as follows:

   "Relying  on  Article 90 and paragraph 6 of Part 2 of the Constitution
   of the Russian Federation, [I] order that:

   1.  The  lay judges at the district (town) courts shall continue their
   service until the adoption of the relevant federal law.

   2.  The  executive  authorities  of  the  constituent  elements of the
   Russian  Federation  shall, if necessary, organise by-elections of lay
   judges  for  the  district  (town)  courts  at general staff meetings,
   general  meetings  and  gatherings  of  citizens  at  their  places of
   residence."

   94.  On 21 March 1997 the Constitutional Court examined an application
   by  Mr  Sh. who submitted, in particular, that the presidential decree
   was incompatible with the Constitution. The Constitutional Court found
   that  it had no competence to verify the compatibility of presidential
   decrees with the Constitution at citizens' request. It noted, however,
   that  the  procedure  for  examination of criminal cases by a judicial
   bench  including  lay  judges  was established by the old CCrP and the
   RSFSR  Judicial System Act. Those acts remained in force in accordance
   with  paragraph  6  of  Part  2  of the Constitution. It was therefore
   necessary to preserve the system of lay judges for the time being.

   6.  The Judicial System Act

   95.  On  1  January  1997  Federal Constitutional Law no. 1-FKZ on the
   judicial  system of the Russian Federation ("the Judicial System Act")
   entered  into  force.  By  virtue  of  section  1  of the Act judicial
   authority  in  the Russian Federation was vested exclusively in courts
   comprising  professional  judges,  jurors,  lay judges and arbitration
   judges appointed or elected in accordance with the procedure laid down
   by federal law.

   96.  Section  8  of  the Judicial System Act provided that individuals
   could  participate as jurors, lay judges and arbitration judges in the
   administration of justice in accordance with the procedure established
   by federal law.

   97.  Section  37  established  that lay judges elected to serve in the
   courts  before 1 January 1997 should remain in office until the expiry
   of the term of office for which they had been elected.

   7.  The presidential decree of 23 January 1997

   98.  On 23 January 1997 the President of the Russian Federation issued
   Decree no. 41, which, in so far as relevant, read as follows:

   "Having  regard  to  the [fact] that the Federal Constitutional Law on
   the  judicial  system  of the Russian Federation has come into effect,
   for  the  purpose  of ensuring the activities of the courts of general
   jurisdiction in the Russian Federation and for the judicial protection
   of  the  rights  of  individuals,  and  relying  on  Article 90 of the
   Constitution of the Russian Federation, [I] order that:

   1.  The lay judges at ... regional courts shall continue their service
   until the adoption of the federal law on the procedure for appointment
   (election) of lay judges."

   99.  On   10   October  2002  the  Constitutional  Court  examined  an
   application  by  a Mr G., who claimed that the presidential decree was
   incompatible  with  the  Constitution.  The Constitutional Court found
   that,  in accordance with Article 90 of the Constitution, presidential
   decrees  must not be contrary to the Constitution or federal laws. The
   decree  contested  by Mr G. prolonged the term of office of lay judges
   elected  earlier.  It  did not establish any procedure for calling lay
   judges to sit in particular criminal cases which would differ from the
   procedure prescribed by federal law. In particular, it did not contain
   any  provisions  which would allow lay judges to be called for service
   on  a regular basis and for periods surpassing two weeks per year. The
   complaint was declared inadmissible.

   8.  The Lay Judges Act

   100.  On  10 January 2000 the Federal Law on lay judges at the federal
   courts  of  general  jurisdiction  in the Russian Federation ("the Lay
   Judges  Act")  came  into  force.  Under  section 1(2) of the Act, lay
   judges  were  persons authorised to sit in civil and criminal cases as
   non-professional judges.

   101.  Section  2 provided that lists of lay judges were to be compiled
   for  every  district  court by local self-government bodies; the lists
   were   subject  to  confirmation  by  the  regional  legislature.  The
   confirmed  list  was to be submitted to the relevant district court no
   later  than  one  month before the expiry of the term of office of the
   lay  judges on the previous list. The term of office of lay judges was
   five years.

   102.  Section  6  determined  the  procedure  for the selection of lay
   judges  at  the regional courts. It provided that the President of the
   regional  court  was  to draw names at random from the overall list of
   lay  judges  assigned to the district courts situated on the territory
   of   that   region.  The  number  of  lay  judges  assigned  to  every
   professional  judge  should  be  at  least  three times as many as the
   number  needed  for a hearing. From the list of lay judges assigned to
   him  the professional judge was to select two lay judges by lot to sit
   in a particular case.

   103.  Under  the  terms  of section 9, lay judges could only be called
   for  service  in a regional court once a year, for the entire duration
   of the court proceedings in a particular case.

   9.  The Regulation on the appointment of lay judges

   104.  The  Presidium  of  the  Supreme Court of the Russian Federation
   issued  on  14  January  2000  a  Regulation  on the procedure for the
   selection of lay judges. The Regulation provided that the President of
   a  district  court  should draw at random from the general list of lay
   judges 156 names for each judge. The random selection could be made by
   any  method  (for  example  by random computer selection, or by manual
   selection  of  each  fifth  name  for one judge, each seventh name for
   another  judge, etc.). The lay judges for a particular case were to be
   drawn  by  lot  by  the judge to whom the case had been assigned. Each
   court  was  obliged  to  keep  records  of  all  random selections and
   drawings by lot.

   105.  The  Regulation  further  referred to section 37 of the Judicial
   System  Act  and  section  2  of the lay Judges Act and provided that,
   given that no lists of lay judges had been compiled by the date of the
   entry  into  force of the Lay Judges Act, the acting lay judges should
   remain  in  office  until the submission of new lists of lay judges to
   the courts.

   10.  The presidential decree of 25 January 2000

   106.  Under  the  decree  of  the acting President of Russia issued on
   25 January   2000,  lay  judges  serving  in  the  courts  of  general
   jurisdiction  were  authorised  to  remain  in office until the courts
   received   the   new   lists  of  judges  confirmed  by  the  regional
   legislatures.

   107.  On  21  December  2001  the  Constitutional  Court  examined  an
   application  by  a  Mr  P.,  who  submitted,  in  particular, that the
   presidential  decree  was  incompatible  with  the  Constitution.  The
   Constitutional  Court  found  that  it had no competence to verify the
   compatibility   of  presidential  decrees  with  the  Constitution  at
   citizens' request.

   11.  The Code of Criminal Procedure

   108.  On  1  July  2002  the Code of Criminal Procedure of the Russian
   Federation  (Law  no.  174-FZ  of  18  December 2001 - "the new CCrP")
   entered  into  force.  It abolished the system of lay judges as from 1
   January 2004.

   12.  The presidential decree of 5 August 2002

   109.  On  5 August 2002 the President of the Russian Federation issued
   Decree no. 855, by which, referring to the entry into force of the Lay
   Judges  Act,  he declared his Decrees no. 299 of 22 March 1995, no. 41
   of  23 January  1997 and no. 103 of 25 January 2000 to be no longer in
   force.

   B.  Visits by counsel

   110.  The  new  CCrP  provides  that  advocates  authorised  by  a bar
   association are admitted to act as counsel in criminal proceedings. At
   the  defendant's  request  the judge may admit a close relative or any
   other  person  to  act  as counsel (Article 49). Counsel may visit the
   suspect  or the accused in private and in confidence. The frequency or
   duration of the visits may not be limited (Articles 47 S: 4 (9) and 53
   S: 1 (1)).

   111.  Federal  Law  no.  103-FZ  of  15  July 1995 on the detention of
   persons  suspected  or  accused  of  criminal offences ("the Detention
   Act")  provides  that  a  suspect or an accused is entitled to receive
   visits  from his counsel from the moment he or she is arrested. Visits
   are  conducted  in  private  and  in  confidence.  Their  duration  or
   frequency  may  be limited only in those cases established by the Code
   of Criminal Procedure. Counsel may visit a detainee on presentation of
   his  or  her  bar certificate and a mandate to represent the accused's
   interests   issued   by   the   bar   association  (ордер  юридической
   консультации).  It  is prohibited to require any other documents. If a
   non-advocate has been admitted to act as counsel, visits are permitted
   on  presentation  of  the relevant court decision and an identity card
   (section 18).

   III.  RELEVANT INTERNATIONAL INSTRUMENTS

   112.  The  Standard  Minimum  Rules  for  the  Treatment of Prisoners,
   adopted  by  the  First  United  Nations Congress on the Prevention of
   Crime  and  the  Treatment  of  Offenders, held in Geneva in 1955, and
   approved  by  the  Economic and Social Council by its resolution 663 C
   (XXIV)  of  31  July  1957 and 2076 (LXII) of 13 May 1977, provide, in
   particular, as follows:

   "10.  All  accommodation  provided  for  the  use  of prisoners and in
   particular  all  sleeping accommodation shall meet all requirements of
   health,  due regard being paid to climatic conditions and particularly
   to  cubic  content  of air, minimum floor space, lighting, heating and
   ventilation.

   11. In all places where prisoners are required to live or work,

   (a)  The windows shall be large enough to enable the prisoners to read
   or  work  by  natural light, and shall be so constructed that they can
   allow  the  entrance  of  fresh air whether or not there is artificial
   ventilation;

   (b) Artificial light shall be provided sufficient for the prisoners to
   read or work without injury to eyesight.

   12.  The  sanitary  installations  shall  be  adequate to enable every
   prisoner  to  comply  with the needs of nature when necessary and in a
   clean and decent manner.

   13.  Adequate  bathing  and  shower installations shall be provided so
   that  every  prisoner  may  be  enabled and required to have a bath or
   shower,  at  a  temperature  suitable to the climate, as frequently as
   necessary  for  general  hygiene  according to season and geographical
   region, but at least once a week in a temperate climate.

   14.  All  pans  of an institution regularly used by prisoners shall be
   properly maintained and kept scrupulously clean at all times.

   ...

   15.  Prisoners  shall  be required to keep their persons clean, and to
   this  end  they  shall  be  provided  with  water and with such toilet
   articles as are necessary for health and cleanliness.

   ...

   19.  Every  prisoner  shall,  in  accordance  with  local  or national
   standards,  be  provided  with  a  separate bed, and with separate and
   sufficient  bedding  which  shall  be  clean when issued, kept in good
   order and changed often enough to ensure its cleanliness.

   ...

   20.  (1) Every prisoner shall be provided by the administration at the
   usual  hours  with  food  of nutritional value adequate for health and
   strength, of wholesome quality and well prepared and served.

   (2)  Drinking  water  shall be available to every prisoner whenever he
   needs it.

   ...

   21.  (1) Every prisoner who is not employed in outdoor work shall have
   at  least  one  hour of suitable exercise in the open air daily if the
   weather permits.

   ..."

   113.  The  relevant  extracts from the General Reports prepared by the
   European  Committee  for  the  Prevention  of  Torture  and Inhuman or
   Degrading Treatment or Punishment (CPT) read as follows:

           Extracts from the 2nd General Report [CPT/Inf (92) 3]

   "47.  A  satisfactory programme of activities (work, education, sport,
   etc.)  is  of  crucial importance for the well-being of prisoners. ...
   [P]risoners  cannot  simply  be  left  to languish for weeks, possibly
   months,  locked  up  in  their  cells, and this regardless of how good
   material  conditions might be within the cells. The CPT considers that
   one should aim at ensuring that prisoners in remand establishments are
   able  to  spend a reasonable part of the day (8 hours or more) outside
   their cells, engaged in purposeful activity of a varied nature...

   48.  Specific   mention  should  be  made  of  outdoor  exercise.  The
   requirement that prisoners be allowed at least one hour of exercise in
   the  open air every day is widely accepted as a basic safeguard ... It
   is   also   axiomatic  that  outdoor  exercise  facilities  should  be
   reasonably spacious...

   49.  Ready  access  to proper toilet facilities and the maintenance of
   good  standards  of  hygiene  are  essential  components  of  a humane
   environment."

           Extracts from the 3rd General Report [CPT/Inf (93) 12]

   "35.    A  prison's  health  care  service  should at least be able to
   provide  regular out-patient consultations and emergency treatment (of
   course,  in  addition  there  may  often  be a hospital-type unit with
   beds).  ...  Further,  prison  doctors should be able to call upon the
   services of specialists.

   ...

   Out-patient  treatment should be supervised, as appropriate, by health
   care  staff;  in  many cases it is not sufficient for the provision of
   follow-up  care  to  depend  upon  the  initiative  being taken by the
   prisoner.

   36.    The  direct support of a fully-equipped hospital service should
   be available, in either a civil or prison hospital.

   ...

   37.  Whenever  prisoners  need  to  be  hospitalised  or examined by a
   specialist  in  a  hospital,  they  should  be  transported  with  the
   promptness and in the manner required by their state of health.

   38.   A  prison  health care service should be able to provide medical
   treatment   and   nursing   care,   as   well  as  appropriate  diets,
   physiotherapy, rehabilitation or any other necessary special facility,
   in  conditions  comparable to those enjoyed by patients in the outside
   community. Provision in terms of medical, nursing and technical staff,
   as  well  as  premises,  installations and equipment, should be geared
   accordingly.

    There  should  be  appropriate supervision of the pharmacy and of the
   distribution  of  medicines.  Further,  the  preparation  of medicines
   should  always  be  entrusted  to  qualified  staff (pharmacist/nurse,
   etc.).

   39.   A  medical  file should be compiled for each patient, containing
   diagnostic  information  as well as an ongoing record of the patient's
   evolution  and  of  any  special examinations he has undergone. In the
   event  of  a  transfer, the file should be forwarded to the doctors in
   the receiving establishment.

    Further,  daily  registers  should  be  kept by health care teams, in
   which   particular  incidents  relating  to  the  patients  should  be
   mentioned.  Such  registers are useful in that they provide an overall
   view  of  the health care situation in the prison, at the same time as
   highlighting specific problems which may arise.

   40.   The  smooth  operation of a health care service presupposes that
   doctors  and  nursing  staff  are able to meet regularly and to form a
   working  team  under the authority of a senior doctor in charge of the
   service."

          Extract from the 11th General Report [CPT/Inf (2001) 16]

   "30.  The  CPT  frequently encounters devices, such as metal shutters,
   slats,  or  plates  fitted to cell windows, which deprive prisoners of
   access  to  natural  light  and  prevent  fresh  air from entering the
   accommodation.   They   are   a   particularly   common   feature   of
   establishments holding pre-trial prisoners. The CPT fully accepts that
   specific  security  measures designed to prevent the risk of collusion
   and/or  criminal activities may well be required in respect of certain
   prisoners.  However, the imposition of measures of this kind should be
   the  exception  rather  than  the rule. This implies that the relevant
   authorities  must  examine  the  case  of  each  prisoner  in order to
   ascertain  whether  specific security measures are really justified in
   his/her  case.  Further,  even  when  such measures are required, they
   should  never  involve  depriving  the  prisoners concerned of natural
   light and fresh air. The latter are basic elements of life which every
   prisoner is entitled to enjoy; moreover, the absence of these elements
   generates  conditions  favourable  to  the  spread  of diseases and in
   particular tuberculosis.

   The  CPT  recognises  that the delivery of decent living conditions in
   penitentiary  establishments  can  be very costly and improvements are
   hampered in many countries by lack of funds. However, removing devices
   blocking  the windows of prisoner accommodation (and fitting, in those
   exceptional  cases  where  this  is  necessary,  alternative  security
   devices  of  an  appropriate  design)  should not involve considerable
   investment  and,  at  the same time, would be of great benefit for all
   concerned."

   THE LAW

   I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE
   APPLICANT'S CONDITIONS OF DETENTION

   114.  The applicant complained that the conditions of his detention at
   the  Kirovskiy  District  police  station  in  Yekaterinburg,  in  the
   temporary  detention  facilities  in  Yekaterinburg  and Ozersk and in
   remand  centre  no. IZ-66/1  in  Yekaterinburg  had  been in breach of
   Article 3 of the Convention, which provides:

   "No  one  shall  be  subjected  to  torture or to inhuman or degrading
   treatment or punishment."

   A.  Admissibility

   115.  The  Court observes that from 15 October to 25 November 1999 the
   applicant  was  held  at  the  police  station  and  in  the temporary
   detention  facilities,  where  the cells were allegedly small and cold
   and  were not equipped with sleeping facilities, where he was deprived
   of food and where his access to the toilet was restricted. He was then
   transferred  to  remand  centre  no. IZ-66/1, where he was held in the
   allegedly  overcrowded  communal  cells until 6 July 2002. From 6 July
   2002  to  18 November 2003 the applicant was held in solitary cells in
   the  remand  centre  which  were allegedly cold, dark, damp and dirty.
   Having  regard  to  the  difference  in  the nature of the applicant's
   allegations  in  respect  of  the  local police station, the temporary
   detention  facilities, the communal cells of the remand centre and the
   solitary  cells  of  the  remand  centre,  the Court does not find any
   special  circumstances  which  would  enable it to construe the entire
   period  of the applicant's detention as a "continuing situation" (see,
   for  similar  reasoning, Maltabar and Maltabar v. Russia, no. 6954/02,
   S:S: 82-84, 29 January 2009).

   116.  Given  that  the  present  application  was lodged on 2 December
   2003, the complaints relating to:

   (a)  the  applicant's detention at the local police station and in the
   temporary  detention  facilities  from 15 October to 25 November 1999,
   and

   (b)  his  detention in the communal cells of remand centre no. IZ-66/1
   from 25 November 1999 to 6 July 2002

   were  introduced  out  of time and must be rejected in accordance with
   Article 35 S:S: 1 and 4 of the Convention.

   117.  As  to  the  complaint relating to his detention in the solitary
   cells  of  remand  centre  no. IZ-66/1 from 6 July 2002 to 18 November
   2003, the Court notes that it is not manifestly ill-founded within the
   meaning of Article 35 S: 3 of the Convention. It further notes that it
   is  not  inadmissible  on  any  other  grounds.  It  must therefore be
   declared admissible.

   B.  Merits

   1.  Submissions by the parties

   118.  The   applicant   challenged  the  Government's  description  of
   conditions  in  remand centre no. IZ-66/1, summarised in paragraphs 28
   to  34  above,  as  factually untrue. The certificates prepared by the
   remand  centre management in 2008 could not be considered as credible.
   The  applicant  insisted  that  his  description of the cells had been
   accurate  and  referred to the documents submitted by him in evidence.
   The  conditions  of  his  detention  had  been  inhuman  and therefore
   incompatible  with  Article  3.  The applicant further argued that his
   frequent  handcuffing  had  caused  him  unusual  and severe suffering
   because his hands were affected by rheumatoid arthritis.

   119.  The  Government submitted that the conditions of the applicant's
   detention   had   been   satisfactory   and  in  compliance  with  the
   requirements  of  Article  3. The cells had been light and warm. There
   had  been  glazed windows, artificial illumination and central heating
   in  all cells. The applicant had been provided with an individual bunk
   and  bedding  at  all times. He had been supplied with sufficient food
   and  drinking water. The sanitary and hygienic norms had been met. The
   applicant  had  been  able  to exercise daily. The Government conceded
   that  occasionally  the  duration of his daily walk had been shortened
   but  stated  that the officials responsible for that omission had been
   disciplined.  The  applicant's  handcuffing on the way to the exercise
   yard had been lawful and justified because he had been registered as a
   person  liable  to  escape  or  attack  the escorting officers. In the
   exercise yard the handcuffs had been removed.

   2.  The Court's assessment

   120. The  Court  reiterates that Article 3 of the Convention enshrines
   one of the most fundamental values of democratic society. It prohibits
   in  absolute  terms  torture  or  inhuman  or  degrading  treatment or
   punishment,   irrespective  of  the  circumstances  and  the  victim's
   behaviour  (see  Labita  v. Italy  [GC],  no.  26772/95,  S: 119, ECHR
   2000-IV).   However,  to  fall  under  Article 3  of  the  Convention,
   ill-treatment  must attain a minimum level of severity. The assessment
   of  this  minimum level of severity is relative; it depends on all the
   circumstances  of the case, such as the duration of the treatment, its
   physical and mental effects and, in some cases, the sex, age and state
   of  health  of  the  victim (see Valaшinas v. Lithuania, no. 44558/98,
   S:S: 100-101, ECHR 2001-VIII).

   121.  The  Court  has  consistently  stressed  that  the suffering and
   humiliation  involved  must  in  any  event  go  beyond the inevitable
   element  of  suffering  or  humiliation connected with a given form of
   legitimate  treatment  or  punishment.  Under this provision the State
   must  ensure  that  a  person  is  detained  in  conditions  which are
   compatible  with  respect  for  his human dignity, that the manner and
   method  of the execution of the measure do not subject him to distress
   or  hardship  of  an  intensity  exceeding  the  unavoidable  level of
   suffering  inherent in detention and that, given the practical demands
   of imprisonment, his health and well-being are adequately secured (see
   Valaшinas, cited above, S: 102, and Kuda v. Poland [GC], no. 30210/96,
   S: 94,  ECHR 2000-XI). When assessing conditions of detention, account
   must  be  taken of their cumulative effects as well as the applicant's
   specific  allegations (see Dougoz v. Greece, no. 40907/98, S: 46, ECHR
   2001-II). The duration of the detention is also a relevant factor.

   122.  The  Court  notes  that  the present case is different from many
   Russian  cases  where  a  violation of Article 3 of the Convention was
   found  on  account of the lack of personal space afforded to detainees
   (see,  for  example,  Lind  v. Russia, no. 25664/05, S: 59, 6 December
   2007;  Kantyrev  v. Russia,  no. 37213/02,  S:S: 50-51,  21 June 2007;
   Andrey  Frolov  v.  Russia,  no.  205/02,  S:S:  47-49, 29 March 2007;
   Mamedova  v.  Russia,  no. 7064/05, S:S: 61-67, 1 June 2006; Mayzit v.
   Russia,  no. 63378/00,  S: 40,  20 January 2005; and Labzov v. Russia,
   no. 62208/00, S: 44, 16 June 2005). The applicant in the present case,
   who was held in solitary cells, did not complain of a lack of personal
   space.  Instead,  he  complained  of  other  aspects  of  the physical
   conditions   of   detention,  including  the  coldness  of  his  cell,
   insufficient  access  to  daylight  and  poor sanitary conditions. The
   Court  has  previously  found  that  such factors as access to natural
   light  or air, adequacy of heating arrangements, compliance with basic
   sanitary  requirements,  the  opportunity to use the toilet in private
   and  the availability of ventilation are relevant to the assessment of
   whether  the acceptable threshold of suffering or degradation has been
   exceeded  (see, for example, Vlasov v. Russia, no. 78146/01, S: 84, 12
   June  2008; Babushkin v. Russia, no. 67253/01, S: 44, 18 October 2007;
   Trepashkin  v. Russia, no. 36898/03, S: 94, 19 July 2007; and Peers v.
   Greece,  no. 28524/95, S:S: 70-72, ECHR 2001-III). The Court will have
   to verify whether the physical conditions of the applicant's detention
   can be regarded as compatible with Article 3 of the Convention.

   123.  The  parties have disputed many aspects of the conditions of the
   applicant's   detention   in  the  solitary  cells  of  remand  centre
   no. IZ-66/1  in Yekaterinburg. The Court is accordingly faced with the
   task  of  establishing  the  facts  on  which the parties disagree. It
   reiterates  in  this respect that allegations of treatment contrary to
   Article  3  must  be  supported  by appropriate evidence. In assessing
   evidence,  the  Court  has  generally  applied  the  standard of proof
   "beyond  reasonable  doubt"  (see  Ireland  v.  the United Kingdom, 18
   January   1978,   S:  161,  Series  A  no.  25).  However,  Convention
   proceedings, such as the present application, do not in all cases lend
   themselves  to  a  rigorous  application  of  the principle affirmanti
   incumbit   probatio   (he   who  alleges  something  must  prove  that
   allegation)  because  in  certain  instances the respondent Government
   alone  have access to information capable of corroborating or refuting
   these  allegations.  A  failure  on a Government's part to submit such
   information  without  a  satisfactory explanation may give rise to the
   drawing  of  inferences  as to the well-foundedness of the applicant's
   allegations  (see,  among other authorities, Kokoshkina v. Russia, no.
   2052/08,  S:  59,  28  May  2009, and Ahmet zkan and Others v. Turkey,
   no. 21689/93, S: 426, 6 April 2004).

   124.  The  Court  observes  at the outset that the applicant described
   the  conditions  of  his  detention  in  detail.  He  submitted colour
   photographs  of  his  cells  confirming  his  description,  as well as
   letters  from  remand  centre officials and the supervising prosecutor
   which   corroborate  some  of  his  allegations.  The  Government,  by
   contrast,  confined their supporting evidence to numerous certificates
   from  the  remand centre management issued on 18 August 2008, that is,
   long  after  the  applicant  had left the remand centre. They have not
   submitted any source materials on the basis of which the assertions of
   comfortable  conditions  of  detention contained in those certificates
   could  be verified. The Court would reiterate that on several previous
   occasions   it   has  declined  to  accept  the  validity  of  similar
   certificates   on  the  ground  that  they  could  not  be  viewed  as
   sufficiently reliable given the lapse of time involved and the absence
   of  any  supporting documentary evidence (see Kokoshkina, cited above,
   S: 60;  Sudarkov  v. Russia,  no.  3130/03,  S:  43, 10 July 2008; and
   Belashev  v.  Russia,  no. 28617/03,  S: 52,  13 November  2007).  The
   certificates  are therefore of little evidentiary value for the Court.
   The  few documents dating from the period of the applicant's detention
   in  the  remand centre produced by the Government seem to conflict, at
   least  in  part, with their description of the conditions of detention
   and  lend  some support to the applicant's allegations. The Court will
   now examine the conditions of the applicant's detention in detail.

   125.  Firstly, the applicant claimed that it had been very cold in one
   of  his  cells, cell no. 10, where he was held from 22 October 2002 to
   18 November  2003,  as  the  window there had no glazing. Although the
   Government  disputed that allegation, it is confirmed by the testimony
   of one of the warders, who conceded that the window was not glazed and
   was insulated by a piece of polythene (see paragraph 33 above), and by
   the  letter from the regional prosecutor which stated that the windows
   in the remand centre were glazed only in September 2003 (see paragraph
   51  above).  The  Court  therefore  considers  it  established  beyond
   reasonable  doubt  that  for almost a year the applicant was held in a
   cell   which   had  an  unglazed  window.  It  has  already  found  it
   unacceptable  that anyone should be detained in conditions involving a
   lack  of  adequate protection against extreme temperatures (see Mathew
   v.  the  Netherlands,  no. 24919/03, S: 214, ECHR 2005-IX). Due to the
   lack of glazing the applicant in the present case was for long periods
   of  time  exposed to extremely low temperatures, falling in the winter
   months  to  -  30  C  (see paragraph 41 above). This factor undeniably
   caused him hardship of an intensity exceeding the unavoidable level of
   suffering  inherent  in detention. His situation was exacerbated still
   further  by  the  fact  that he suffered from arthritis and staying in
   cold  places  had been specifically and repeatedly forbidden to him by
   doctors (see paragraphs 59, 60 and 72 above). The Court considers that
   in  such  circumstances  the  lengthy exposure of the applicant to low
   temperatures amounted in itself to inhuman treatment.

   126.  In  view  of  the  above  conclusion, it would be unnecessary to
   assess  other  aspects  of  the physical conditions of the applicant's
   detention.  However, the Court cannot but state that it is appalled by
   the  photographs  showing  the  interior of the applicant's cells. The
   cells  are  evidently in a deplorable state of repair and cleanliness.
   The concrete walls, the ceiling and the floor are damaged by dampness.
   The  toilet  facilities  are decrepit and filthy and are not separated
   from  the  living area. There is no lavatory bowl or flush system; the
   washbasin  is  eaten away with rust. The metal beds are also rusty and
   dilapidated,  while  the bedding is worn out and dirty (see paragraphs
   38 and 42 above). The Court considers that such conditions can only be
   described as degrading and unfit for decent habitation.

   127.  Further,  the  Court  observes  that  for  more  than a year the
   applicant  had limited access to natural light. Indeed, the Government
   acknowledged that the blinds were removed only in December 2002, which
   confirms  the  applicant's  allegation that the window in cell no. 210
   where  he was held from 6 July to 25 September 2002 was covered with a
   metal  screen  (see  paragraphs 34 and 36 above). The photographs show
   that cell no. 32, where the applicant was held from 25 September to 14
   October 2002, had no window, while the window in cell no. 10 where the
   applicant  was  held  from  22  October  2002  to 18 November 2003 was
   blinded  by  several  layers of thick metal grills which significantly
   reduced the amount of daylight that could penetrate into the cell (see
   paragraphs  38,  41  and  42  above).  The  Court  therefore  finds it
   established  that the window arrangements in the remand centre allowed
   little  or  no  access  to  natural light. The access to fresh air was
   equally  limited in certain cells, especially in the two cells, nos. 1
   and  32,  that  had  no  windows.  The  Government did not produce any
   reliable  evidence  confirming  their  claim  that  those  cells  were
   equipped with mechanical ventilation. It therefore appears that for at
   least a month the applicant was kept in cells which were either poorly
   ventilated  or  not  ventilated  at  all.  The  Court  notes  that the
   applicant  was confined to his insufficiently lit and ventilated cells
   for  the  entire day, except for one hour of outdoor exercise. On many
   occasions   the  duration  of  the  outdoor  exercise  was  unlawfully
   shortened  to  half an hour, as the Government admitted (see paragraph
   30  above).  Accordingly,  for  a  considerable  part  of each day the
   applicant  was deprived of daylight and in certain cells of fresh air,
   which  undoubtedly  contributed  to the distress that he felt owing to
   the other factors described above (see, for similar reasoning, Vlasov,
   cited above, S:S: 83 and 84).

   128.  Finally,  the  Court  notes that hot food was served irregularly
   owing  to  staff  shortages  (see  paragraph 49 above). It accepts the
   applicant's  argument  that  this circumstance aggravated even further
   the appalling conditions of his detention.

   129.  Having  regard to the cumulative effect of the factors described
   above,  the Court finds that the conditions in which the applicant was
   held  diminished  his  human  dignity  and  aroused in him feelings of
   anguish  and  inferiority  capable of humiliating and debasing him. In
   view  of that finding, there is no need for the Court to establish the
   truthfulness  or  otherwise  of the applicant's allegations concerning
   other  aspects  of  his detention such as the presence of parasites in
   the  cells,  his handcuffing in the exercise yard, the restrictions on
   food  parcels  from  relatives or the removal of a television set. The
   factors  analysed  in  paragraphs  125  to 128 above are sufficient to
   enable  the  Court  to conclude that the conditions of the applicant's
   detention  in  remand  centre no. IZ-66/1 in Yekaterinburg amounted to
   inhuman and degrading treatment.

   130.  There  has  therefore  been  a  violation  of  Article  3 of the
   Convention.

   II.  ALLEGED  VIOLATION  OF  ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF
   INSUFFICIENT MEDICAL ASSISTANCE

   A.  Submissions by the parties

   131.  The  applicant  complained  under Article 3 of the Convention of
   the  allegedly inadequate medical assistance afforded to him in remand
   centre  no.  IZ-66/1  in  Yekaterinburg.  In  his  opinion the medical
   records  showed that he had not received any regular treatment for his
   rheumatoid polyarthritis. The recommendations made by a rheumatologist
   had  not  been  complied  with.  An  independent  medical  expert  had
   confirmed  that  the  treatment  had  been  inadequate,  in particular
   because  the  applicant  had not been prescribed any disease-modifying
   drugs  (see  paragraph  72  above).  As  a  result of the insufficient
   medical  assistance  afforded  to  him the applicant had suffered from
   severe pain and his disease had progressed.

   132.  The   Government  submitted  that  the  applicant  had  received
   adequate  and  timely treatment. He had undergone several examinations
   in  prison hospital IK-2. He had received the medication prescribed to
   him. His state of health had always been satisfactory.

   B.  The Court's assessment

   1.  Admissibility

   133.  The   Court   notes   that  this  complaint  is  not  manifestly
   ill-founded  within  the meaning of Article 35 S: 3 of the Convention.
   It  further notes that it is not inadmissible on any other grounds. It
   must therefore be declared admissible.

   2.  Merits

   134.  The  Court  reiterates that although Article 3 of the Convention
   cannot  be  construed  as  laying down a general obligation to release
   detainees  on  health grounds, it nonetheless imposes an obligation on
   the  State  to  protect the physical well-being of persons deprived of
   their  liberty  by,  among  other  things,  providing  them  with  the
   requisite medical assistance (see Khudobin v. Russia, no. 59696/00, S:
   93,  ECHR 2006-XII (extracts); Mouisel v. France, no. 67263/01, S: 40,
   ECHR  2002-IX;  and  Kuda,  cited above, S: 94). The Court has held on
   many occasions that the lack of appropriate medical care may amount to
   treatment contrary to Article 3 (see, for example, Wenerski v. Poland,
   no. 44369/02,  S:S:  56  to  65,  20  January  2009;  Popov v. Russia,
   no. 26853/04,  S:S:  210  to  213  and  231  to 237, 13 July 2006; and
   Nevmerzhitsky  v.  Ukraine,  no.  54825/00, S:S: 100-106, ECHR 2005-II
   (extracts)).

   135.  Turning  to  the  present  case,  the  Court  notes  that  it is
   undisputed  between  the  parties that the applicant has suffered from
   rheumatoid  polyarthritis  since April 2001. What the parties disagree
   on,  and  what  appears to lie at the core of the case at hand, is the
   adequacy  or otherwise of the treatment afforded to the applicant. The
   Government  claimed  that  the  applicant  had  been provided with the
   necessary  care,  whereas  the  applicant  contested  the Government's
   arguments.  In  these  circumstances,  the Court finds it necessary to
   establish  whether  the  applicant was in fact denied adequate medical
   assistance  and,  as  a  consequence,  was caused suffering of a level
   going beyond the threshold set by Article 3.

   136.  The  applicant's  medical records indicate that he was regularly
   examined by the remand centre doctor and was on six occasions taken to
   IK-2  prison hospital for comprehensive examinations. He was also seen
   twice by Dr L., a specialist in joint diseases, who set up a course of
   treatment  for  him.  The applicant, however, argued that the doctors'
   recommendations   concerning   anti-inflammatory   pills  and  hormone
   injections  had  not  been  complied  with  and  that in any event the
   prescribed  course  of  treatment  had  been  inadequate as it did not
   include any treatment with disease-modifying drugs.

   137.  The  Court  will  firstly  examine  the  applicant's  allegation
   concerning  treatment  with  disease-modifying  drugs.  Relying on the
   opinion  of Dr K. (see paragraph 72 above), the applicant claimed that
   disease-modifying drugs were necessary to slow down the destruction of
   the  joints  and  that  as  a result of the failure to administer such
   drugs  his  disease had quickly progressed to disability. The Court is
   faced with conflicting medical evidence as regards the appropriateness
   of  such treatment in the applicant's situation. Thus, Dr K. stated in
   her  report  that  disease-modifying  drugs  were an essential part of
   anti-arthritis treatment, while the rheumatologist Dr L., who examined
   the  applicant  twice, decided that they were not required in his case
   (see paragraph 60 above). The Court is inclined to endorse the opinion
   of  Dr L. because she had the benefit of having examined the applicant
   in  person  while  Dr K. never saw the applicant and gave her opinion,
   which is couched in general terms, on the basis of the medical records
   alone. Moreover, there is nothing in Dr K.'s report to give support to
   the  applicant's  allegation  that there was a causal link between the
   absence  of treatment with disease-modifying drugs and his disability.
   On  the  contrary,  Dr  K.  admitted  that arthritis was incurable and
   almost  invariably led to disability. The Court finds, therefore, that
   it  is  not  substantiated that treatment with disease-modifying drugs
   was  indicated  in  the  applicant's  case or that the absence of such
   treatment  had  an  adverse  effect on the development of his disease.
   Although  his  condition  had  indeed  deteriorated  by 2004, there is
   insufficient  evidence  to  conclude  that  this  was  the  result  of
   inadequate treatment rather than the natural and intrinsic consequence
   of his chronic disease.

   138.  As regards the allegation that the applicant did not receive the
   anti-inflammatory  pills  and  hormone injections recommended for him,
   the  Court  notes  that the applicant was prescribed anti-inflammatory
   treatment  first by the remand centre doctor in April 2001 and January
   2002  (see paragraphs 53 and 56 above), and subsequently by Dr L., who
   additionally  recommended  ointments,  hepatoprotective  treatment and
   intra-articular  hormone  injections (see paragraphs 60 and 68 above).
   Dr L.  particularly  stressed  that the applicant's condition required
   constant  application  of  the  anti-inflammatory  treatment. However,
   there  is  no  indication  in  the applicant's medical records that he
   received  the  prescribed medication, apart from ten injections in May
   and  June 2002 (see paragraph 57 above). The Court reiterates that the
   authorities of the penitentiary institution have an obligation to keep
   a  record  of  the  applicant's  state  of health and the treatment he
   underwent  while  in  detention.  Such  medical records should contain
   sufficient  information  specifying what kind of treatment the patient
   was  prescribed, what treatment he actually received, when and by whom
   it   was  administered,  how  the  applicant's  state  of  health  was
   monitored,  and so on. If the applicant's medical file is not specific
   enough   in  these  respects,  the  Court  may  draw  inferences  (see
   Aleksanyan  v.  Russia, no. 46468/06, S: 147, 22 December 2008). Given
   that  the  applicant's  medical  records  do  not  contain any entries
   confirming  that the prescribed medication was in fact administered to
   him,  and taking into account the fact that Dr L. stated unambiguously
   in  her  report  of  27 May 2003 that her recommendations had not been
   complied with (see paragraph 68 above), the Court finds it established
   that  the applicant did not receive the treatment prescribed to him by
   his doctor.

   139.  Further, the Court takes note of the fact that on an unspecified
   date in the summer or autumn of 2003 the applicant refused to take the
   anti-inflammatory  pills  proposed to him, insisting that he should be
   given injections (see paragraph 69 above). This circumstance, however,
   is  of little significance for the present case, as by the time of the
   refusal  the applicant had already been left without any treatment for
   more  than  two  years.  In  any event, the treatment proposed on that
   occasion  did  not  correspond  to  the  doctor's prescription. It was
   limited to anti-inflammatory pills and did not include the injections,
   ointments or hepatoprotective pills prescribed by Dr L.

   140.  Finally,  it  remains  to  be ascertained whether the failure to
   provide  the  prescribed  treatment  caused  the  applicant  suffering
   attaining  the  minimum  level of severity required to fall within the
   scope of Article 3. The Court notes in this respect that the treatment
   recommended to the applicant was aimed at soothing the inflammation in
   the  affected  joints  and,  as a consequence, reducing the pain. As a
   result  of the failure to administer that treatment the applicant must
   have  endured  constant  and  considerable  suffering. Although he was
   occasionally  supplied  with  painkillers, their effect was limited in
   time  and,  in  any  event,  they  could not be considered as a proper
   substitute  for  the  treatment duly prescribed by the doctor. Indeed,
   the  Court observes that the applicant often complained of pain in his
   joints  (see  paragraphs 58, 68 and 69 above) which must have been due
   to  the  failure to administer the prescribed medication. Accordingly,
   the  Court is satisfied that the acceptable threshold of suffering was
   exceeded.

   141.  The  foregoing considerations are sufficient to enable the Court
   to  conclude that by leaving the applicant to suffer considerable pain
   for  a  prolonged period of time as a result of the failure to provide
   him  with  treatment  for  his arthritis, the custodial authorities in
   remand  centre  no.  IZ-66/1  in  Yekaterinburg  failed  to  meet  the
   standards of medical care for detained persons imposed by Article 3 of
   the  Convention  and  subjected the applicant to inhuman and degrading
   treatment. There has therefore been a violation of that Article.

   III.  ALLEGED VIOLATION OF ARTICLE 6 S: 1 OF THE CONVENTION

   142.  The  applicant  further  complained  under Article 6 S: 1 of the
   Convention  that  he had been tried and convicted by a court which was
   not composed in accordance with the law. The relevant parts of Article
   6 S: 1 read as follows:

   "In the determination of ... any criminal charge against him, everyone
   is  entitled to a fair ... hearing ... by [a] ... tribunal established
   by law."

   A.  Admissibility

   143.  The   Court   notes   that  this  complaint  is  not  manifestly
   ill-founded  within  the meaning of Article 35 S: 3 of the Convention.
   It  further notes that it is not inadmissible on any other grounds. It
   must therefore be declared admissible.

   B.  Merits

   1.  Submissions by the parties

   144.  The  Government submitted that the lay judges T., O. and Ye. had
   been  competent  to  sit  in  the  applicant's  case  as they had been
   lawfully  elected  in 1993 and 1999 and their statutory term of office
   had  been  extended  by  the presidential decrees of 22 March 1995, 23
   January  1997  and 25 January 2000. They had been chosen by lot to sit
   in the applicant's case. Accordingly, the lay judges had been selected
   in accordance with the procedure prescribed by domestic law.

   145.  The applicant submitted that the Government had not produced any
   documents  confirming that there had been a legal basis for lay judges
   T.,  O.  and  Ye.  to  sit on the judicial bench that had examined his
   case.  In his opinion, the selection of lay judges for his case should
   have  been  governed  by  the Lay Judges Act which was in force at the
   material time. The presidential decree of 25 January 2000 ran contrary
   to  that  Act as it allowed the lay judges selected in accordance with
   the  old  procedure  to  remain  in office without any time-limit, and
   thereby  unlawfully  deferred the implementation of the Lay Judges Act
   for  an  uncertain  period  of  time.  Further, the Government had not
   submitted  any  documents  showing that the lay judges had indeed been
   drawn  by  lot  as  required by the Lay Judges Act. Therefore, the lay
   judges who had examined the applicant's case had not been appointed in
   accordance  with  the procedure established by the Lay Judges Act. The
   applicant  referred  to  the case of Posokhov v. Russia (no. 63486/00,
   ECHR  2003-IV),  in  which  a violation of Article 6 S: 1 was found in
   similar circumstances.

   2.  The Court's assessment

   146.  The Court reiterates that the phrase "established by law" covers
   not  only  the  legal basis for the very existence of a "tribunal" but
   also  the  composition of the bench in each case (see Buscarini v. San
   Marino  (dec.),  no. 31657/96,  4  May  2000).  The Court is therefore
   required to examine allegations such as those made in the present case
   concerning  a  breach  of  the  domestic  rules  on the appointment of
   judicial  officers.  The  fact that the allegation in the present case
   concerned lay judges does not make it any less important as, by virtue
   of  Article  15  of  the  Code of Criminal Procedure then in force, in
   their  judicial  capacity  lay  judges  enjoyed  the  same  rights  as
   professional judges (see paragraph 86 above).

   147.  The  Court has already found violations of Article 6 S: 1 of the
   Convention  in  a  number  of  cases  against Russia pertaining to the
   appointment  of  lay  judges. In some cases the finding of a violation
   was  made  on  account of the domestic authorities' failure to produce
   documentary evidence showing that the lay judges had been appointed in
   accordance  with  the  procedure established by domestic law, combined
   with  "the  apparent  failure  to  observe the requirements of the Lay
   Judges Act regarding the drawing of random lots and two weeks' service
   per  year"  (see,  for example, Fedotova v. Russia, no. 73225/01, S:S:
   41-44,  13  April  2006,  and  Posokhov,  cited above, S:S: 40-44). In
   another  case a serious breach of the procedure for the appointment of
   lay  judges  was in itself sufficient to undermine the fairness of the
   criminal  proceedings  against  the applicant and to lead the Court to
   the  conclusion  that  the courts which heard the applicant's case had
   not been tribunals "established by law" (see Ilatovskiy v. Russia, no.
   6945/04, S:S: 39-43, 9 July 2009).

   148.  Turning  to  the  facts  of the present case, the Court observes
   that  according  to  the  Government  the  lay  judges  who  tried the
   applicant's  case  were  selected in 1993 and 1999, that is, at a time
   when  the  RSFSR Judicial System Act of 1981 was still in force. Their
   term of office was several times extended by presidential decrees, the
   last  of  which,  the decree of 25 January 2000, provided that all lay
   judges should remain in office pending compilation and approval of the
   new  lists  of lay judges in accordance with the Lay Judges Act, which
   had  just  entered  into  force.  By  the time of the beginning of the
   applicant's  trial, almost two years after the entry into force of the
   Lay  Judges  Act,  those lists still had not been compiled and the lay
   judges  elected  in  1993 and 1999 remained in office. Accordingly, in
   order  to  establish  whether  the  Sverdlovskiy  Regional Court which
   convicted  the applicant can be regarded as a "tribunal established by
   law",  the Court has to examine two related issues. Firstly, it has to
   decide  whether  the  essential  requirements  of  the  procedure  for
   selection of lay judges, as laid down in the RSFSR Judicial System Act
   of 1981, were respected. Secondly, it has to examine the lawfulness of
   the  extensions  of the lay judges' term of office by the presidential
   decrees,  and  especially  by the decree of 25 January 2000 which, the
   applicant  alleged,  was  incompatible  with  the recently adopted Lay
   Judges Act.

   149.  On  the  first  issue,  the  Court  notes  that  the  Government
   submitted  the  decision  of  the  Sverdlovskiy  Regional  Legislature
   selecting  Ms Ye. to serve as a lay judge at the Sverdlovskiy Regional
   Court  (see paragraph 26 above). The Court is therefore satisfied that
   Ms  Ye.  had  been lawfully appointed to that office. By contrast, the
   Government  failed  to produce any documents that could constitute the
   legal  basis  for  the appointment of Ms T. and Ms O. as lay judges at
   the  Sverdlovskiy  Regional  Court.  Nor were the domestic authorities
   able  to  produce,  in reply to the applicant's requests, any evidence
   that  those  persons  had ever been elected to serve as lay judges. It
   follows  that  there existed no legal grounds for the participation of
   lay  judges  T.  and O. in the administration of justice. Accordingly,
   the  Sverdlovskiy  Regional  Court which convicted the applicant could
   not be regarded as a "tribunal established by law".

   150.  In  view  of  the  above  finding,  it is unnecessary to examine
   separately  whether  the fairness of the proceedings was also breached
   because   the  lay  judges'  term  of  office  had  been  extended  by
   presidential  decrees  after  the  Lay  Judges Act laying down the new
   procedure  for the selection of lay judges had already come into force
   (see Ilatovskiy, cited above, S: 43). Nor is it necessary to ascertain
   whether  the  requirements of the Lay Judges Act regarding the drawing
   of random lots were observed in the applicant's case.

   151.  The   Court   concludes   that  the  fairness  of  the  criminal
   proceedings against the applicant was undermined by serious defects in
   the  initial  selection  of  the  lay judges who heard the applicant's
   case.  There  has  therefore been a violation of Article 6 S: 1 of the
   Convention.

   IV.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

   152.  The  applicant further complained that his representative before
   the  Court  had  been refused permission to visit him in remand centre
   no.   IZ-66/1  in  Yekaterinburg.  He  relied  on  Article 34  of  the
   Convention, which provides as follows:

   "The  Court may receive applications from any person, non-governmental
   organisation  or  group  of individuals claiming to be the victim of a
   violation  by  one  of  the High Contracting Parties of the rights set
   forth in the Convention or the Protocols thereto. The High Contracting
   Parties  undertake  not to hinder in any way the effective exercise of
   this right."

   153.  The  applicant  submitted  that  by  forbidding Ms Demeneva from
   visiting  him  in  the  remand  centre,  the  domestic authorities had
   hindered the preparation of his application to the Court. Although the
   applicant   was   represented   by   two  advocates  in  the  domestic
   proceedings,   those  advocates  had  no  experience  of  the  Court's
   procedures  or  case-law.  The  applicant  had  therefore  retained Ms
   Demeneva,   a   lawyer  with  an  NGO  specialising  in  international
   protection  of  human  rights,  to  represent  his  interests  in  the
   Strasbourg  proceedings.  However, Ms Demeneva had not been allowed to
   visit  him,  and  therefore  they had been unable to discuss in person
   many issues crucial for the preparation of the application.

   154.  The Government submitted that the applicant had been represented
   by   two  professional  advocates  in  the  domestic  proceedings.  Ms
   Demeneva,  not  a  professional  advocate,  had  no right to visit the
   applicant  unless  a  special  permission was issued by the courts. In
   July  2003  Ms Demeneva  had  been  issued  with  a  visitor's permit.
   However,  she  had  not been allowed to visit the applicant as she had
   failed  to  produce a judicial decision by which she had been admitted
   to  act as counsel for the applicant, as required by domestic law (see
   paragraph  111  above).  In the Government's opinion, it followed from
   the  above  that  the  applicant's  right  of  petition  had  not been
   hindered.

   155.  The Court reiterates that it is of the utmost importance for the
   effective operation of the system of individual petition instituted by
   Article 34  that  applicants or potential applicants should be able to
   communicate  freely with the Court without being subjected to any form
   of   pressure  from  the  authorities  to  withdraw  or  modify  their
   complaints  (see  Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99
   and  46951/99,  S: 102,  ECHR  2005-I).  In  this  context, "pressure"
   includes  not  only  direct coercion and flagrant acts of intimidation
   but also other improper indirect acts or contacts designed to dissuade
   or  discourage  applicants from pursuing a Convention remedy. The fact
   that  the  individual  actually managed to pursue his application does
   not prevent an issue arising under Article 34: should the Government's
   action make it more difficult for the individual to exercise his right
   of  petition,  this amounts to "hindering" his rights under Article 34
   (see  Akdivar  and  Others  v. Turkey, 16 September 1996, S:S: 105 and
   254,  Reports  1996-IV). The intentions or reasons underlying the acts
   or  omissions  in  question  are  of  little  relevance when assessing
   whether  Article  34 of the Convention was complied with; what matters
   is  whether  the situation created as a result of the authorities' act
   or  omission  conforms  to  Article  34  (see  Paladi v. Moldova [GC],
   no. 39806/05, S: 87, 10 March 2009).

   156.  The  Court  has already found in a number of cases that measures
   limiting   the   applicant's  contacts  with  his  representative  may
   constitute  interference with the exercise of the applicant's right of
   individual  petition  (see,  for  example,  Shtukaturov v. Russia, no.
   44009/05,  S:  140,  27  March  2008,  where a ban on lawyer's visits,
   coupled  with a ban on telephone calls and correspondence, was held to
   be   incompatible   with  the  respondent  State's  obligations  under
   Article 34  of  the Convention). The Court has, however, accepted that
   compliance  by a representative with certain formal requirements might
   be  necessary  before obtaining access to a detainee, for instance for
   security reasons or in order to prevent collusion or perversion of the
   course  of  the  investigation  or  justice  (see  Melnikov v. Russia,
   no. 23610/03,  S:  96,  14 January  2010). At the same time, excessive
   formalities in such matters, such as those that could de facto prevent
   a  prospective  applicant  from  effectively  enjoying  his  right  of
   individual  petition, have been found to be inacceptable. By contrast,
   where  the  domestic  formalities  were  easy to comply with, no issue
   arose  under Article 34 (see Lebedev v. Russia, no. 4493/04, S:S: 119,
   25 October 2007).

   157.  Turning  to  the  present  case,  the  Court  observes  that the
   applicant's  representative before the Court, Ms Demeneva, is a lawyer
   with  a  human rights NGO. She is not a professional advocate and does
   not  belong  to any bar association. However, given that under Rule 36
   S:  4  (a)  of the Rules of Court permission to represent an applicant
   may  be  granted to a non-advocate, the Contracting States must ensure
   that  non-advocate  representatives are allowed to visit detainees who
   have lodged or intend to lodge an application with the Court under the
   same  conditions  as  advocates.  Russian law does not provide for any
   special  rules for visits of detainees by their representatives before
   the  Court.  Accordingly,  the  general  visiting  rules  designed for
   counsel representing a detainee in domestic criminal proceedings apply
   to   visits   from   representatives  before  the  Court.  As  far  as
   non-advocates  are concerned, section 18 of the Detention Act provides
   that  a  non-advocate  may visit a detainee in a remand centre only if
   the  former  possesses a judicial decision by which he or she has been
   admitted  to act as counsel in the domestic criminal proceedings, such
   admittance  being  within  the  discretionary  powers  of the trial or
   appeal judge (see paragraphs 110 and 111 above). No exceptions to that
   rule  are  possible.  Accordingly, non-advocate representatives before
   the Court are faced with difficulties in obtaining permission to visit
   their clients.

   158.  The   circumstances   of   the  present  case  illustrate  those
   difficulties  amply.  The domestic courts refused to admit Ms Demeneva
   as  counsel  for the applicant (see paragraphs 20 and 77 above). After
   Ms Demeneva's repeated requests for permission to visit the applicant,
   supported  by  the applicant's letters expressing his wish to meet her
   for  the  preparation  of  an  application  to the European Court, the
   Regional  Court  issued  Ms Demeneva with a visitor's permit. However,
   the  remand  centre  management  did not allow Ms Demeneva to meet the
   applicant,  on the ground that she did not possess a judicial decision
   by  which she had been admitted to act as counsel for the applicant in
   the  domestic  proceedings.  After  the  Supreme  Court gave the final
   judgment  in  the  applicant's  criminal case the visitor's permit was
   annulled  without  Ms  Demeneva  having  once seen the applicant. As a
   result  Ms  Demeneva  was  unable  to visit the applicant for almost a
   year, despite her repeated attempts to obtain permission. Although the
   District  Court  eventually  ordered the remand centre to organise the
   applicant's  meetings  with  Ms  Demeneva,  that  order  could  not be
   enforced  owing  to  the applicant's transfer to a correctional colony
   (see paragraphs 78 to 85 above).

   159.  The  Court notes that it was never alleged that meetings between
   the  applicant  and  Ms  Demeneva might present any security risk or a
   risk  of  collusion or perversion of the course of justice. It appears
   that the refusal of visits was due to a gap in the domestic law, which
   was  designed  to govern meetings with counsel in domestic proceedings
   and   did   not   envisage  dealing  with  requests  for  visits  from
   representatives before the Court.

   160.  In   view  of  the  foregoing,  the  Court  considers  that  the
   restriction of the applicant's contacts with his representative before
   the  Court  constituted an interference with the exercise of his right
   of  individual  petition  which  is  incompatible  with the respondent
   State's  obligations  under  Article 34  of  the Convention. The Court
   therefore  concludes  that  the  respondent State has failed to comply
   with its obligations under Article 34 of the Convention.

   V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

   161.  The  Court  has  examined  the other complaints submitted by the
   applicant.   However,  having  regard  to  all  the  material  in  its
   possession,  and in so far as these complaints fall within the Court's
   competence,  it  finds  that  they do not disclose any appearance of a
   violation  of the rights and freedoms set out in the Convention or its
   Protocols.  It  follows  that  this  part  of  the application must be
   rejected  as being manifestly ill-founded, pursuant to Article 35 S:S:
   3 and 4 of the Convention.

   VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   162.  Article 41 of the Convention provides:

   "If  the Court finds that there has been a violation of the Convention
   or  the  Protocols  thereto,  and  if  the  internal  law  of the High
   Contracting Party concerned allows only partial reparation to be made,
   the Court shall, if necessary, afford just satisfaction to the injured
   party."

   A.  Damage

   163.  The   applicant   claimed  30,000  euros  (EUR)  in  respect  of
   non-pecuniary damage.

   164.  The  Government  submitted  that the claim was excessive and had
   not been substantiated by documents. In their opinion the finding of a
   violation would constitute sufficient just satisfaction.

   165.  The  Court  accepts  that  the  applicant  suffered distress and
   frustration which cannot be compensated for solely by the finding of a
   violation.  Making  its  assessment  on  an equitable basis, the Court
   awards  the  applicant  EUR 21,000 in respect of non-pecuniary damage,
   plus any tax that may be chargeable on that amount.

   B.  Costs and expenses

   166.  The  applicant  did  not  claim costs and expenses. Accordingly,
   there is no call to make an award under this head.

   C.  Default interest

   167.  The  Court  considers  it  appropriate that the default interest
   should  be  based on the marginal lending rate of the European Central
   Bank, to which should be added three percentage points.

   FOR THESE REASONS, THE COURT UNANIMOUSLY

   1.  Declares   the   complaints   concerning   the  allegedly  inhuman
   conditions  of  the  applicant's  detention,  the allegedly inadequate
   medical   assistance  afforded  to  him  and  the  allegedly  unlawful
   composition  of  the  trial  court admissible and the remainder of the
   application inadmissible;

   2.  Holds  that  there  has  been  a  violation  of  Article  3 of the
   Convention  on  account  of  the inhuman conditions of the applicant's
   detention;

   3.  Holds  that  there  has  been  a  violation  of  Article  3 of the
   Convention on account of the inadequate medical assistance afforded to
   the applicant;

   4.  Holds  that  there  has  been a violation of Article 6 S: 1 of the
   Convention;

   5.  Holds  that  the  respondent  State  has failed to comply with its
   obligations under Article 34 of the Convention;

   6.  Holds

   (a)  that  the  respondent State is to pay the applicant, within three
   months from the date on which the judgment becomes final in accordance
   with   Article 44 S: 2  of  the  Convention,  EUR  21,000  (twenty-one
   thousand  euros),  plus  any tax that may be chargeable, in respect of
   non-pecuniary damage, to be converted into Russian roubles at the rate
   applicable at the date of settlement;

   (b)  that  from  the  expiry of the above-mentioned three months until
   settlement  simple  interest shall be payable on the above amount at a
   rate  equal  to the marginal lending rate of the European Central Bank
   during the default period plus three percentage points;

   7.  Dismisses   the  remainder  of  the  applicant's  claim  for  just
   satisfaction.

   Done  in English, and notified in writing on 10 June 2010, pursuant to
   Rule 77 S:S: 2 and 3 of the Rules of Court.

   Sren Nielsen Christos Rozakis
   Registrar President

   ZAKHARKIN v. RUSSIA JUDGMENT

   ZAKHARKIN v. RUSSIA JUDGMENT

   37

   37


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