Судебное дело "Борисов против России"
13.03.2012
FIRST SECTION
CASE OF BORISOV v. RUSSIA
(Application no. 12543/09)
JUDGMENT
STRASBOURG
13 March 2012
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 Borisov v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Nina Vajic, President,
Anatoly Kovler,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mo/se, judges,
and So/ren Nielsen, Section Registrar,
Having deliberated in private on 21 February 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12543/09) 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 Vyacheslav Viktorovich
Borisov ("the applicant"), on 13 January 2009.
2. The applicant was represented by Mr A. Burkov, a lawyer practising
in Yekaterinburg. The Russian Government ("the Government") were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant complained, in particular, that the conditions of
his pre-trial detention had been inhuman and degrading. He also
claimed that his right to defend himself in person had been violated.
4. On 30 November 2009 the Court decided to apply Rule 41 of the
Rules of Court and to give notice of the application to the
Government. The Court further decided to rule on the admissibility and
merits of the application at the same time (Article 29 S: 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964 and lives in Yekaterinburg.
A. Criminal proceedings
6. On 1 September 2008 the Chkalovskiy District Court, Yekaterinburg,
convicted the applicant of aggravated fraud and sentenced him to seven
years' imprisonment. The operative part of the judgment provided:
"The judgment may be appealed against in the Sverdlovskiy Regional
Court... If an appeal is lodged, the convicted person has the right to
ask for leave to appear before the appeal court".
7. According to the applicant, on 7 September 2008 he lodged a
preliminary statement of appeal, in which he sought, among other
things, leave to appear before the appeal court. It appears that the
statement was lost and that the applicant became aware of that fact no
later than 13 October 2008.
8. On 20 October 2008 the applicant introduced a full statement of
appeal, followed by two addenda on 27 October and 14 November 2008.
None of these documents referred to his request to appear in person.
9. On 21 November 2008 the Sverdlovsk Regional Court held an appeal
hearing and upheld the conviction. Counsel for the applicant, though
not the applicant himself, was present and made oral submissions.
B. Conditions of detention
10. On 1 September 2008 the applicant was placed in Yekaterinburg
remand centre IZ-66/1. It appears that he was held there at least
until 7 June 2010, the date of the latest correspondence with the
Court.
11. The Government produced, among others, three documents dated
14 January 2010 from the director of remand prison IZ-66/1, which
stated that the applicant was an inmate in cells 327, 413, 424 and
425.
12. According to the documents, the applicant was detained in cell
327 from 1 September to 9 December 2008 and from 22 December 2008 to
29 April 2009. The cell measured 31 sq. m and was equipped with twelve
bunk beds. During the above periods it held from thirteen to
twenty-nine and from eight to twenty detainees respectively.
13. Cell 413, occupied by the applicant from 9 to 22 December 2008,
measured 9 sq. m and had two bunk beds. During the indicated period it
held two inmates.
14. Cell 424, where the applicant was detained from 29 April to
2 September 2009 and from 3 September 2009 to at least 7 June 2010,
measured 27 sq. m and was equipped with ten bunk beds. It held from
three to twelve and from five to eleven detainees during these
periods.
15. Cell 425 was occupied by the applicant from 2 to 3 September
2009. It measured 15 sq. m and was equipped with four bunk beds. A
total of two inmates stayed in the cell during that period.
16. The applicant disputed the Government's submissions concerning
the number of inmates and the number of bunk beds. He claimed that
cell 327 had contained up to forty-five and cell 424 up to sixteen
detainees. He also alleged that cell 327 had had eighteen bunks, and
that cell 424 had been equipped with eight sleeping places. The
applicant pointed out that he had frequently had to share his bunk
with other inmates.
17. According to the applicant, the cells were poorly lit and
ventilated. The toilet pan was not separated from the living area by
any partition. He was not provided with any toiletries or individual
bedding, and a shower was allowed only every ten days. The diet was
inadequate.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS
18. For a comprehensive summary of the domestic and international
standards of conditions of detention in remand prisons, see Benediktov
v. Russia (no. 106/02, S:S: 20 and 21, 10 May 2007).
19. The Code of Criminal Procedure requires appeal courts to verify
the legality, validity and fairness of first-instance judgments
(Article 360 S: 1). A convicted person held in custody who expresses a
wish to be present at the examination of an appeal shall be entitled
to participate either directly in the court session or to state his
case by video link. The court shall make a decision with respect to
the form of participation of the convicted person in the court
hearing. A convicted person who has appeared before the court shall
always be entitled to take part in the appeal hearing (Article 376 S:
3).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
20. The applicant complained that the conditions of his pre-trial
detention violated Article 3 of the Convention, which reads as
follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
A. Admissibility
21. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 S: 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
22. The Government submitted that the applicant had not been
subjected to torture, inhuman or degrading treatment or punishment
during the period of his detention, and that the conditions of his
detention had been compatible with Russian law and the requirements of
Article 3 of the Convention.
23. The applicant submitted that the cells had been severely
overcrowded. With the exception of the short periods spent in cells
413 and 425, he was afforded no more than 3 sq. m of personal space
and had to take turns with other detainees to sleep.
24. The Court observes that there are certain discrepancies in the
parties' submissions concerning the number of sleeping places and the
actual number of detainees, as demonstrated by the documents submitted
by the Government (see paragraphs 11-15 above) and the by applicant's
account (see paragraph 16 above). However, both parties agree that the
occupancy rate regularly exceeded the design capacity of the cells and
that most of the time the applicant was afforded less than 3 sq. m of
personal space.
25. The Court reiterates that in many cases in which detained
applicants had at their disposal less than three square metres of
personal space, it has already found that the lack of personal space
afforded to them was so extreme as to justify in itself a finding of a
violation of Article 3 of the Convention (see, among many
others, Pitalev v. Russia, no. 34393/03, S: 47, 30 July
2009; Denisenko and Bogdanchikov v. Russia, no. 3811/02, S: 98,
12 February 2009; Vlasov v. Russia, no. 78146/01, S: 81, 12 June 2008;
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; Labzov v.
Russia, no. 62208/00, S: 44, 16 June 2005; Mayzit v. Russia, no.
63378/00, S: 40, 20 January 2005; Tsarenko v. Russia, no. 5235/09, S:
51, 3 March 2011; and Nisiotis v. Greece, no. 34704/08, S: 39,
10 February 2011). The Court is also mindful of the fact that the
cells in which the applicant was detained contained some furniture and
fittings, such as bunk beds and the lavatory, which must have further
reduced the floor area available to him. The Court finds that the
applicant was detained in those cramped conditions for more than one
year and ten months.
26. The Court notes that even though there is no indication that
there was a positive intention to humiliate or debase the applicant,
the Court finds that the fact that he was obliged to live, sleep and
use the toilet in the overcrowded cell was itself sufficient to cause
distress or hardship of an intensity exceeding the unavoidable level
of suffering inherent in detention, and to arouse in him feelings of
anguish and inferiority capable of humiliating and debasing him (see
Tsarenko, cited above, S: 52, and Nisiotis, cited above, S: 37).
27. Having regard to its case-law on the subject and the material
submitted by the parties, the Court concludes that the conditions of
the applicant's detention in Yekaterinburg remand prison IZ-66/1 were
inhuman and degrading and thus violated Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
28. The applicant complained that his right to take part in the
appeal hearing had been violated. He relied on Article 6 S:S: 1 and 3
(c) of the Convention, the relevant part of which read as follows:
"1. ...[E]veryone is entitled to a fair... hearing... by an
independent and impartial tribunal... .
...
3. Everyone charged with a criminal offence has the following minimum
rights:
...
(c) to defend himself in person or through legal assistance of his own
choosing..."
29. The Government contested that argument, claiming that at no point
had the applicant informed the authorities of his wish to participate
in the appeal hearing. In any event, the applicant had been
represented by counsel, who had attended the hearing and represented
his position to the court.
30. The applicant maintained his complaint. He argued that he had
made an explicit request to attend the appeal hearing personally in
his preliminary statement of appeal, which had been lost. The
applicant further claimed that since Russian appeal courts can examine
questions both of law and of fact, his presence at the hearing would
have been essential even if he had not made such a request, otherwise
the proceedings could not be considered adversarial.
A. Admissibility
31. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 S: 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
32. The Court has previously established that the guarantees of
Article 6, in particular the right to be present and to participate
effectively in a hearing, apply not only to first-instance trial, but
also to proceedings in courts of appeal (see, among other authorities,
Kulikowski v. Poland (revision), no. 18353/03, S: 59, 21 December
2010).
33. This is particularly important for the Russian legal system,
where the appeal courts have jurisdiction to deal with questions of
law, as well as questions of fact pertaining both to criminal
liability and to sentencing. They are empowered to examine evidence
and additional materials submitted by the parties directly, with the
effect that they may uphold a first-instance judgment, quash or amend
it, or remit the case for a fresh trial (see paragraph 19 above).
34. However, the guarantees of Article 6 are not absolute. According
to the Court's case-law, neither the letter nor the spirit of Article
6 of the Convention prevents a person from waiving of his or her own
free will, either expressly or tacitly, entitlement to the guarantees
of this provision (see Hermi v. Italy [GC], no. 18114/02, S: 73, ECHR
2006-XII). But such a waiver must, if it is to be effective for
Convention purposes, be established in an unequivocal manner, be
attended by minimum safeguards commensurate with its importance, and
should not run counter to any important public interest (see Jones v.
the United Kingdom (dec.), no. 30900/02, 9 September 2003, and
Sejdovic v. Italy [GC], no. 56581/00, S: 87, 1 March 2006; Hermi,
cited above, S: 74; and Panovits v. Cyprus, no. 4268/04, S: 68, 11
December 2008).
35. It remains to be determined whether, in the circumstances of the
case, the applicant can be said to have implicitly, through his
conduct, waived his right to appear before the appeal court.
36. Under Russian law, the applicant's right to participate in the
appeal hearing, directly or by video link, was conditional on making a
request to that effect (see paragraph 19 above). Such a requirement
does not in itself contradict the Convention, if the procedure is
clearly set out in the domestic law and complied with by all
participants of the proceedings (see Kononov v. Russia, no. 41938/04,
S: 40, 27 January 2011).
37. It is not disputed by the parties that the applicant was aware
that he had to ask for leave to appear. He had been apprised of this
requirement in the operative part of the first-instance judgment (see
paragraph 6 above). Furthermore, a request to that effect appears to
have featured in his preliminary statement of appeal.
38. After the applicant learned that his preliminary statement had
been lost, he introduced a new statement of appeal and two addenda,
which were duly received and examined by the domestic courts. However,
the applicant, who was assisted by a professional lawyer of his
choosing, did not reiterate his request to attend personally in any of
the subsequent documents without giving any explanation as to why he
omitted to do so.
39. In such circumstances, the Court concludes that the applicant
failed to inform the Russian authorities of his wish to attend the
appeal hearing personally, and thus, through his conduct, he
implicitly waived that right.
40. As to the adversarial character of the proceedings, the Court
notes that the applicant was represented by counsel at all stages of
the proceedings, including the appeal hearing. Moreover, the applicant
did not explain in his submissions why it was important for him to be
personally present in the courtroom and what specific statements or
evidence, distinct from those made by counsel, he wished to lay before
the appeal court. Accordingly, there is no indication that the
adversarial character of the proceedings was compromised.
41. In the light of the foregoing considerations, the Court concludes
that there has been no violation of Article 6 S: 1 of the Convention
taken in conjunction with Article 6 S: 3 (c) as regards the
applicant's absence from the appeal hearing.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
42. The applicant complained under Article 6 of the Convention about
the outcome of the criminal proceedings and alleged violations of the
presumption of innocence and of his right to adequate time and
facilities to prepare his defence. Also, he complained under Article
13 of a lack of effective domestic remedies and, with reference to
Article 14, of discrimination on the ground of his political opinions.
43. Having considered his submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
44. It follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 S:S: 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. 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
46. The applicant claimed 15,000 euros (EUR) in compensation for
non-pecuniary damage incurred as a result of the infringement of his
Convention rights.
47. The Government contested the claim for compensation for
non-pecuniary damage, considering the amount excessive.
48. Making an assessment on an equitable basis and taking into
account its case-law, the Court awards the applicant EUR 7,500 in
respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
49. The applicant also claimed EUR 2,275 for costs and expenses
incurred before the Court.
50. The Government did not comment.
51. According to the Court's case-law, an applicant is entitled to
the reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court notes that the applicant did not
submit any documents confirming that the expenses to which he refers
have actually been incurred, and rejects his claim for costs and
expenses.
C. Default interest
52. The Court considers it appropriate that the default interest rate
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 conditions of the
applicant's pre-trial detention and his absence from the appeal
hearing admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the
Convention as regards the inhuman and degrading conditions of the
applicant's detention in Yekaterinburg remand prison IZ-66/1;
3. Holds that there has been no violation of Article 6 S:S: 1 and 3
(c) of the Convention as regards the applicant's absence from the
appeal hearing;
4. Holds
(a) that the respondent State is to pay the applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 S: 2 of the Convention, EUR 7,500 (seven thousand five
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable to the applicant, to be converted into Russian
roubles at the rate applicable on 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;
5. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 13 March 2012, pursuant to
Rule 77 S:S: 2 and 3 of the Rules of Court.
So/ren Nielsen Nina Vajic
Registrar President
8 BORISOV v. RUSSIA JUDGMENT
BORISOV v. RUSSIA JUDGMENT 9
Добавить комментарий: