THIRD SECTION
CASE OF ROMANOV v.
RUSSIA
(Application no. 63993/00)
JUDGMENT
STRASBOURG
20 October
2005
This judgment will
become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of Romanov v. Russia,
The European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Mr B.M.
Zupančič,
President,
Mr J.
Hedigan,
Mr L.
Caflisch,
Mrs M.
Tsatsa-Nikolovska,
Mr A.
Kovler,
Mr V.
Zagrebelsky,
Mr E.
Myjer,
judges,
and Mr V.
Berger,
Section Registrar,
Having deliberated in private on 1 April 2004 and 29 September
2005,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 63993/00)
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, Ilya Eduardovich Romanov (“the
applicant”), on 16 October 2000.
2. The applicant, who had been granted legal aid, was
represented by Mr A.A. Rekant, a member of
Комитет за
Гражданские Права, a Human Rights NGO based in Moscow. The Russian
Government (“the Government”) were represented by Mr P.A. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that the conditions in the
psychiatric ward of the detention facility “Butyrskiy”, in which he was confined
for over a year and three months, were incompatible with Article 3 of the
Convention. He alleged that the length of his detention on remand had been
excessive and in breach of Article 5 § 3 of the Convention. He alleged a
violation of Article 6 of the Convention in that he had been denied the right to
appear before a trial court.
4. The application was allocated to the Third Section of
the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
5. By a decision of 1 April 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed
observations on the merits (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the
parties replied in writing to each other's observations.
7. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1967. He appears to be
currently detained in Ukraine.
A. The applicant's detention
9. At 8 p.m. on 12 October 1998 the applicant, who was
allegedly in a state of intoxication, was arrested in the street by a police
patrol and taken to a police station. He was then searched and a certain amount
of marijuana was allegedly found on him.
10. At 12:15 a.m. on 13 October 1998 the applicant was
detained, by a decision of an investigator of the Akademicheskiy District Police
Department of Moscow, on suspicion of illegal acquisition and possession of
drugs. The investigator referred to the suppression of crime and prevention of
the risk of the applicant's absconding as the reasons for the decision.
11. On the same day the applicant was charged with the
illegal acquisition of drugs for personal consumption and possession.
12. On 15 October 1998 the investigator issued an order
to detain the applicant on remand, which was approved by a public prosecutor on
the same day. The order referred to the applicant's personality, the danger
posed to the public by the crime with which he had been charged and the risk of
his absconding.
13. On 16 October 1998 the applicant was confined in the
detention facility IZ-48/2 “Butyrskiy” in Moscow.
14. By a decision of the investigating authority the
applicant was subjected to a psychiatric examination.
15. On 19 November 1998 he was examined by experts from
the Alekseev Psychiatric Hospital of Moscow. As the experts had difficulties in
reaching conclusions the applicant was placed in the Serbskiy Forensic
Psychiatry Institute in Moscow, which examined him from 10 December 1998 to 6
January 1999. It was noted that he had never previously been found to be
suffering from a mental illness. The commission of experts diagnosed the
applicant as suffering from profound dissociative personality disorder (innate
psychopathy) and found that he could not be held responsible for the offence
with which he had been charged. The experts recommended that the applicant
undergo psychiatric treatment on an out-patient basis at his place of residence.
16. The period of the investigation and the applicant's
detention in custody were extended twice by the public prosecutor's office,
first until 12 January 1999 and later until 12 February 1999.
17. On 10 February 1999 the investigation was completed
and the applicant's criminal case was submitted to the Gagarinskiy District
Court of Moscow.
B. Court proceedings
18. On 28 June 1999 the Gagarinskiy District Court of
Moscow dismissed the applicant's request for release and ordered, while giving
no reasons and no chance for the defence to object, an additional psychiatric
examination. On 23 July 1999 the decision was upheld by the Moscow City Court on
appeal.
19. The applicant's examination by the commission of
experts of the Serbskiy Forensic Psychiatry Institute on 25 August 1999 revealed
no significant changes in the applicant's memory, attention and mental faculties.
As the commission was uncertain as to the state of the applicant's mental health,
it recommended he undergo a second psychiatric examination as an in-patient.
20. The latter was ordered by the District Court on 20
September 1999 and carried out by the Serbskiy Forensic Psychiatry Institute
from 24 November 1999 to 24 December 1999. The commission of experts found that
the applicant suffered from a psychological disorder in the form of profound
dissociative psychopathy, that he had committed the offence in a deranged state
of mind and that at present he had,
inter alia, a
perverted perception of the circumstances relevant to the criminal case against
him and could not give adequate evidence about them. It was concluded this time
that the applicant was in need of placement in a mental hospital for compulsory
treatment.
21. The hearing of the case was adjourned on a number of
occasions because of the failure of duly notified witnesses to appear. By
decisions of 22 February 2000 and 3 March 2000 the District Court ordered the
district police to bring the witnesses to the court.
22. On 10 March 2000 the District Court again dismissed
the defence's request for the applicant's release, stating as follows:
“Having considered the application [for release], in view
of the nature of the crime committed, the court considers that it cannot be
granted.”
23. On the same day the District Court rejected the
applicant's request to appear before the court on the ground that ill detainees
were not transported to court from the detention facility IZ-48/2.
24. On 3 April 2000 the District Court again dismissed a
request by the applicant's lawyers for the applicant to appear personally at the
hearing in order to give evidence in person and to be taken to the court for
that purpose. The court explained its decision by reasoning that the statement
of a person who had been legally established as mentally disturbed could not be
accepted as evidence. The District Court also rejected a request by the
applicant's lawyers to carry out an inquiry at the detention facility IZ-48/2 to
clarify why they had refused to transport the applicant to the court.
25. On 4 April 2000 the District Court examined the case
at a public hearing in the presence of the prosecutor and the applicant's lawyer.
At the hearing the court examined a member of the commission of experts which
had carried out the second in-patient psychiatric examination of the applicant
recommending his placement in a mental hospital. The applicant's lawyers'
request to examine an expert representing the initial opinion, which had found
the applicant's out-patient treatment at his place of his residence to be
sufficient, was rejected by the court.
26. The court found that at 5 p.m. on 12 October 1998
the applicant had acquired marijuana for personal consumption and kept it in his
possession until being detained by the police three hours later. Such actions
were punishable under Article 228 § 1 of the Criminal Code of the Russian
Federation. The court noted that, according to the expert opinion, the applicant
had committed the offence with which he had been charged in a deranged state of
mind and that he was in need of compulsory treatment in a mental hospital. The
court held that the applicant had committed the offence in a state of diminished
responsibility, that he should therefore not be deemed responsible and that he
should be placed in a mental hospital for compulsory treatment.
27. The applicant's lawyers appealed against the
decision on the grounds of,
inter alia,
the applicant's absence at the trial and the resulting failure of the court to
examine his personality; the court's refusal to examine the first expert in
order to settle the inconsistency between the two expert opinions in the case;
and the court's failure to explain why preference was given to the second
opinion. The defence referred to certificates issued by the detention facility
IZ-48/2 showing a positive assessment of the applicant's behaviour and the
satisfactory state of his physical and mental health. They also pointed out that
the applicant was a good family man and that there was no indication that he had
ever inflicted harm on others.
28. On 25 April 2000 the Moscow City Court dismissed the
applicant's appeal. It stated that it did not find any inconsistency between the
two expert opinions or any reasons for not giving credence to the second one.
The City Court's decision contains no comments in relation to the applicant's
absence at the trial.
29. On 23 May 2000 the applicant was transferred from
the detention facility IZ-48/2 to the Moscow Psychiatric Hospital no. 7. It
appears that he was later transferred to a psychiatric hospital in Nizhniy
Novgorod from which he was discharged on 22 February 2001.
30. On 11 February 2003 the Court communicated the
present case to the Government.
31. On 24 April 2003 the Moscow Public Prosecutor's
Office brought an application for supervisory review of the case before the
Presidium of the Moscow City Court. The prosecutor claimed that the trial court
should have given reasons for ignoring the first expert opinion and basing its
decision to place the applicant in a mental hospital on the second expert
opinion. It was noted that the applicant's state of health had been essentially
the same at the time of the two psychiatric examinations and that the expert,
who was examined by the court, had failed to explain why the recommended type of
treatment had been changed, that question never being resolved at the trial.
32. On 5 June 2003 the Presidium of the Moscow City
Court agreed with the arguments advanced by the prosecutor, quashed the
decisions of 4 and 25 April 2000 and remitted the case for a fresh examination
by another composition of judges of the Gagarinskiy District Court of Moscow.
33. On 9 July 2003 the District Court held a hearing in
the presence of the prosecutor and the applicant's lawyer. The court held that
the applicant had unlawfully acquired and possessed drugs but that he should not
be held criminally responsible since he had been in a deranged state of mind.
The court further held that no compulsory medical measures should be imposed on
the applicant, who had already undergone treatment following the court's
decision of 4 April 2000.
34. The applicant's lawyer appealed, referring,
inter alia, to
the applicant's absence at the first-instance hearing.
35. On 4 September 2003 the Moscow City Court quashed
the decision of 9 July 2003 and discontinued the criminal proceedings against
the applicant pursuant to an Amnesty Act of 26 May 2000.
C. Conditions of detention in the psychiatric ward of
IZ-48/2
36. The applicant was kept in the detention facility
IZ-48/2 “Butyrskiy”, also referred to as SIZO-2, in Moscow from 16 October 1998
until 23 May 2000.
37. The applicant was first held in a cell under the
general regime. In January 1999, after he had undergone a psychiatric
examination at the Serbskiy Forensic Psychiatry Institute, he was placed in the
psychiatric ward of the detention facility SIZO-2.
1. The applicant's account
(a) Cell no. 404
38. The applicant submitted that he had been held in
cell no. 404 for the following approximate periods (give or take two or three
days): from 6 January 1999 until 28 April 1999 and from 24 December 1999 until
25 May 2000.
39. It measured 32 sq. m. It was three metres high with
two windows of 1.7 by 1.7 metres equipped with shutters, which were made of
metal plates five or six centimetres wide welded at an angle of forty-five
degrees so that inmates could not see out of them and very little light could
come in.
40. The cell was dimly lit with one bulb of 40 to 60
watts. The temperature in winter was about 15 to 16 degrees centigrade.
41. There was, however, a hot water supply, and the
inmates received soap from preachers who regularly visited the cell.
42. A 15- or 20-minute shower was allowed only once a
week.
43. Outdoor walks in exercise areas on the roof of the
prison building did not exceed 30 to 40 minutes per day.
44. The cell contained 24 bunk beds and held up to 26
inmates.
45. The applicant and other inmates did not often have
individual bedding. Thus, on his arrival the applicant was given neither
individual bedding nor eating utensils. He went on a hunger strike and lodged a
complaint with the Ministry of Justice. Only four days later mattresses, bed
linen and eating utensils were given to him and his cell mates.
(b) Cell no. 415
46. On 28 April 1999 the applicant was put in cell no.
415 where he stayed until September 1999.
47. The cell, measuring 11.25 sq. m, was three metres
high and had one window measuring 2.9 sq. m equipped with metal shutters of the
same type as in cell no. 404. The cell contained six bunk beds and held between
three and five inmates.
48. The summer of 1999 in Moscow was extremely hot.
While the temperature outside was 40 degrees centigrade, in the cell it probably
reached 50 degrees centigrade. The metal shutters heated up and glowed. To let
air in the prison authorities kept a small opening in the cell door, designed to
pass food to prisoners, open for an hour in the evenings, but it did not help.
49. During the period of the applicant's detention in
the cell it was disinfected only once.
(c) Cell no. 408
50. At the beginning of September 1999 the applicant was
transferred to cell no. 408 which was similar to cell no. 404 except that the
windows were equipped, in addition to the metal shutters, with a metal
construction resembling a cage which prevented inmates from approaching the
window.
51. On 24 November 1999 the applicant was sent to the
Serbskiy Forensic Psychiatry Institute for a second psychiatric examination and
then, a month later, transferred back to cell no. 404.
(d) General observations
52. Detainees received extremely poor medical care. For
the whole period of the applicant's confinement in the psychiatric ward of the
Butyrskiy detention facility he was never examined by a psychiatrist. In
May-June 1999 the applicant fell ill with cold. His repeated requests for
medical assistance were left unanswered for almost a month. Medical help was
provided only after he had threatened to go on hunger strike. The applicant was
twice infected with pediculosis. According to the report of the Serbskiy
Forensic Psychiatry Institute of 25 August 1999, at the time of his detention
the applicant was diagnosed as having scabies. The applicant alleged that his
health had deteriorated as a result of the conditions of his detention.
53. The applicant repeatedly observed the beating of
mentally ill detainees by their cell mates or the prison guards.
54. The cells were never inspected by the health
authority. There was no proper ventilation. Food was of poor quality and not
sufficient.
55. Approximately once a month prison guards conducted a
search for prohibited objects, as a result of which many belongings of the
detainees were stolen.
56. The choice of books was very poor.
2. The Government's account
57. According to the Government's observations of 21
June 2004, based on information provided by the head of the detention facility
SIZO-2 and the health authority, the applicant was kept in three different cells
described as follows: cell no. 415, from 25 April 1999 to 9 September 1999
(14.8 sq. m, 3.5 m. high, 1 window, 4 bunk beds, a lavatory, a wash stand,
central cold-water supply, natural ventilation through a window); cell no. 408,
from 9 September 1999 to 19 January 2000 (34.9 sq. m, 3.5 m. high, 2 windows, 9
bunk beds, a lavatory, a wash stand, central cold-water supply, natural
ventilation through windows); cell no. 404, from 19 January 2000 to 23 May 2000
(35.6 sq. m, 3.5 m. high, 2 windows, 10 bunk beds, a lavatory, a wash stand,
central cold-water supply, natural ventilation through windows).
58. According to the Government's letter of 24 December
2004, from 10 January 1999 until 23 May 2000 the applicant was detained in
cell no. 408 and cell no. 415.
59. The Government acknowledged that the cells were
overcrowded. During the period of the applicant's detention cell no. 408
contained 22 bunk beds and held up to 35 inmates (according to the letter of 24
December 2004 mentioned above).
60. Windows in the cells, measuring 1.1 m. by 1.15 m.,
were equipped with metal bars and window panes with wooden frames. The
Government submitted that no metal shutters were installed on them. A reference
was made to a report on the examination of the cells by the health authority on
11 May 2004 and the following statement by the head of SIZO-2 dated 11 May 2004:
“... None of the windows in the above-mentioned cells
[cells 404, 408 and 415] has shutters on them.”
61. The authorities ran daily inspections of the
technical conditions of the cells in order to ensure, in particular, that the
windows had panes in them and bulbs were changed. Any damage was repaired in the
shortest time possible. The cells were regularly inspected by the health
authority, which checked that the heating, ventilation and lighting of the cells
complied with the established requirements. The relevant records did not contain
any indications of a violation of the above requirements.
62. The applicant had had outdoor walks for at least an
hour per day. The inmates of each cell had walks in turn. There were several
exercise areas on the roof of the building of the detention facility. Their size
varied from 10.4 sq. m to 52.8 sq. m depending on the number of detainees kept
in a cell.
63. Three hot meals were served daily. The applicant had
also been able to buy food in the prison shop and receive food parcels from
relatives.
64. As regards preventive measures against infectious
diseases, on admission to the facility detainees underwent a medical examination
and hygiene treatment. At least once a week they took a shower lasting not less
than 15 minutes and had their bedding changed.
65. The applicant and other detainees had received
proper medical care, including specialist treatment. Those infected with scabies
were isolated. During the period of the applicant's detention, no mass
infectious diseases had been recorded and the health authority had not been
notified of any emergency cases of scabies or pediculosis. The medical personnel
of the detention facility had to undertake daily rounds of the cells. Medical
assistance could be provided in the in-patient unit of the facility or, where
necessary, in other medical institutions of the penitentiary system or public
hospitals.
66. Medical records of detainees concerning the period
of the applicant's detention were destroyed on the expiry of a maximum period
for keeping them. The records containing information on the number of detainees
kept in the cells at the same time as the applicant had been destroyed as well,
as the statutory one-year period for keeping them had expired.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure of 1960
(in force at the
material time)
1. Detention on remand
Article 11 (1). Personal inviolability
“No one may be arrested otherwise than on the basis of a
judicial decision or a prosecutor's order.”
Article 89 (1). Application of preventive
measures
“When there are sufficient grounds for believing that an
accused person may evade an inquiry, preliminary investigation or trial or will
obstruct the establishment of the truth in a criminal case or will engage in
criminal activity, as well as in order to secure the execution of a sentence,
the person conducting the inquiry, the investigator, the prosecutor and the
court may apply one of the following preventive measures in respect of the
accused: a written undertaking not to leave a specified place, a personal
guarantee or a guarantee by a public organisation, or placement in custody.”
Article 92. Order and
decision on the application of a preventive measure
“On the application of a preventive measure a person
conducting an inquiry, an investigator and a prosecutor shall make a reasoned
order, and a court shall give a reasoned decision specifying the criminal
offence which the individual concerned is suspected of having committed, as well
as the grounds for choosing the preventive measure applied. The order or
decision shall be notified to the person concerned, to whom at the same time the
procedure for appealing against the application of the preventive measure shall
be explained.
A copy of the order or decision on the application of the
preventive measure shall be immediately handed to the person concerned.”
Article 96. Placement in custody
“Placement in custody as a preventive measure shall be
done in accordance with the requirements of Article 11 of this Code concerning
criminal offences for which the law prescribes a penalty in the form of
deprivation of freedom for a period of more than one year. In exceptional cases,
this preventive measure may be applied in criminal matters for which a penalty
in the form of deprivation of freedom for a period of less than one year is
prescribed by law.”
Article 97. Time-limits for pre-trial detention
“A period of detention during the investigation of
offences in criminal cases may not last longer than two months. This time-limit
may be extended by up to three months by a district or municipal prosecutor ...
if it is impossible to complete the investigation and there are no grounds for
altering the preventive measure. A further extension of up to six months from
the day of placement in custody may be effected only in cases of special
complexity by a prosecutor of a constituent part of the Russian Federation ...
An extension of the time-limit for such detention beyond
six months shall be permissible in exceptional cases and solely in respect of
persons accused of committing serious or very serious criminal offences. Such an
extension shall be effected by a deputy of the Prosecutor General of the Russian
Federation (up to one year) and by the Prosecutor General of the Russian
Federation (up to 18 months).
No further extension of the time-limit shall be
permissible, and the accused held in custody shall be releasable immediately.
The documents of a completed investigation in a criminal
case shall be produced for consultation by the accused and his defence counsel
not later than one month before the expiry of the maximum time-limit for remand
in custody, as prescribed in the second paragraph of the present Article. In the
event of the accused being unable to consult the case documents before the
expiry of the maximum time-limit for remand in custody, the Prosecutor General
of the Russian Federation, [or] a prosecutor of a constituent part of the
Russian Federation ... may, not later than five days before the expiry of the
maximum time-limit for remand in custody, apply to the judge of the “oblast”,
“krai” or comparable court for an extension of this time-limit.
Not later than five days from the day of receipt of the
application, the judge must take one of the following decisions:
1. to extend the time-limit for remand in custody until
the accused and his counsel have consulted the case documents and the case has
been referred to the trial court by the prosecutor but, anyway, for not more
than six months;
2. to reject the prosecutor's application and to release
the person concerned from custody.
Under the same procedure, the time-limit for remand in
custody may be extended, if necessary, to accede to a request by the accused or
his counsel to pursue the preliminary investigation further.
If a court remits a case for further investigation when
the time-limit for the accused's remand in custody has expired, but the
circumstances of the case preclude any modification of the custody measure, the
time-limit for the remand in custody shall be extended by the prosecutor
supervising the investigation for up to one month from the date on which the
case reaches him. Any further extension of the time-limit shall take account of
the time spent by the accused in custody before the referral of the case to
court, and shall be effected in the manner and within the limits prescribed in
the first and second paragraphs of this Article.
An extension of the time-limit for remand in custody in
accordance with the present Article is subject to appeal to a court and to
judicial review of its legality and justification under the procedure provided
for in Articles 220¹ and 220² of the present Code.”
Article 101.
Cancellation or modification of a preventive measure
“A preventive measure shall be cancelled when it ceases
to be necessary, or else changed into a stricter or a milder one if the
circumstances of the case so require. The cancellation or modification of a
preventive measure shall be effected by a reasoned order of the person carrying
out the inquiry, the investigator or the prosecutor, or by a reasoned court
decision after the case has been transferred to a court.
The cancellation or modification, by the person
conducting the inquiry or by the investigator, of a preventive measure chosen on
the prosecutor's instructions shall be permissible only with the prosecutor's
approval.”
Article 223-1. Setting a date for a court
hearing
“If the accused is kept in custody, the question of
setting a date for a court hearing must be decided no later than 14 days from
the seizure of the court.”
Article 239. Time-limits for examination of the
case
“The examination of a case before the court must start no
later than 14 days from the fixing of a hearing date.”
2. Proceedings concerning the commission of
offences by persons of unsound mind
Article 407. Preparatory actions for court
hearing
“... A trial court may summon to a hearing a person whose
case is being examined unless that person's illness prevents him from appearing
before the court. ...”
Article 409. Determination of case by court
“A trial court determines a case by its decision ... When
rendering the decision the court shall determine the following questions:
1. whether an act posing a danger to the public and
punishable under the criminal law has occurred;
2. whether the act has been committed by the person
whose criminal case is being examined;
3. whether the person has committed the act in a
deranged state of mind;
4. whether the person, after committing the offence, has
developed a mental illness which makes it impossible for him to be conscious of
or control his actions and whether such illness represents a temporary mental
disorder merely requiring an adjournment of the proceedings;
5. whether a compulsory medical measure should be
applied and which specific measure should be applied.”
Article 410. Court decision
“Having found it established that an act posing a danger
to the public and punishable under the criminal law has been committed by a
person in a deranged state of mind, ... the court shall render a decision ... by
which the person is deemed not to be criminally responsible ... and is ordered
to undergo a specific compulsory medical measure, or [the court shall render a
decision by which] the proceedings are terminated and the person is not ordered
to undergo any compulsory medical measure where that person does not pose any
danger to the public on account of the offence he has committed or his state of
health, which does not call for compulsory treatment. ...”
B. Criminal Code of 1996
Article 99. Compulsory medical measures
“1. The court may impose the following compulsory
medical measures:
a) out-patient compulsory psychiatric observation and
treatment;
b) compulsory psychiatric treatment in a mental hospital
of a common type;
c) compulsory psychiatric treatment in a mental hospital
of a special type;
d) compulsory psychiatric treatment in a mental hospital
of a special type under close supervision. ...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The relevant extracts from the General Reports 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]
“46. Overcrowding is an issue of direct relevance to the
CPT's mandate. All the services and activities within a prison will be adversely
affected if it is required to cater for more prisoners than it was designed to
accommodate; the overall quality of life in the establishment will be lowered,
perhaps significantly. Moreover, the level of overcrowding in a prison, or in a
particular part of it, might be such as to be in itself inhuman or degrading
from a physical standpoint.
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...
50. The CPT would add that it is particularly concerned
when it finds a combination of overcrowding, poor regime activities and
inadequate access to toilet/washing facilities in the same establishment. The
cumulative effect of such conditions can prove extremely detrimental to
prisoners.
51. It is also very important for prisoners to maintain
reasonably good contact with the outside world. Above all, a prisoner must be
given the means of safeguarding his relationships with his family and close
friends. The guiding principle should be the promotion of contact with the
outside world; any limitations upon such contact should be based exclusively on
security concerns of an appreciable nature or resource considerations...”
Extracts from the 7th General Report [CPT/Inf
(97) 10]
“13. As the CPT pointed out in its 2nd General Report,
prison overcrowding is an issue of direct relevance to the Committee's mandate
(cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and
unhygienic accommodation; a constant lack of privacy (even when performing such
basic tasks as using a sanitary facility); reduced out-of-cell activities, due
to demand outstripping the staff and facilities available; overburdened
health-care services; increased tension and hence more violence between
prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one
occasion that the adverse effects of overcrowding have resulted in inhuman and
degrading conditions of detention...”
Extracts from the 11th General Report [CPT/Inf
(2001) 16]
“28. The phenomenon of prison overcrowding continues to
blight penitentiary systems across Europe and seriously undermines attempts to
improve conditions of detention. The negative effects of prison overcrowding
have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT,
particularly in central and eastern Europe, inmate accommodation often consists
of large capacity dormitories which contain all or most of the facilities used
by prisoners on a daily basis, such as sleeping and living areas as well as
sanitary facilities. The CPT has objections to the very principle of such
accommodation arrangements in closed prisons and those objections are reinforced
when, as is frequently the case, the dormitories in question are found to hold
prisoners under extremely cramped and insalubrious conditions... Large-capacity
dormitories inevitably imply a lack of privacy for prisoners in their everyday
lives... All these problems are exacerbated when the numbers held go beyond a
reasonable occupancy level; further, in such a situation the excessive burden on
communal facilities such as washbasins or lavatories and the insufficient
ventilation for so many persons will often lead to deplorable conditions.
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... [E]ven 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...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
67. The applicant complained about his conditions of
detention in the psychiatric ward of the detention facility IZ-48/2 “Butyrskiy”.
He relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
68. The Government acknowledged that the detention
facility had been overcrowded. They submitted that a series of legislative,
financial and other measures had been carried out in order to bring conditions
of detention into compliance with domestic and international standards. As a
result, at present the number of persons detained in the detention facility
IZ-48/2 was half the number in 1998. As of 11 May 2004 there had been 308
detainees in the psychiatric ward of the detention facility in issue, which had
a limit of 275 persons.
69. The Government pointed out that the authorities had
had no intention of subjecting the applicant to inhuman or degrading treatment
or of harming his health.
70. The applicant maintained his initial complaint.
A. Principles established by the Court's case-law
71. As the Court has held on many occasions, 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 (Labita v.
Italy, judgment of 6 April 2000,
Reports of Judgments
and Decisions 2000-IV, § 119). However, to fall under Article 3,
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 (Valašinas
v. Lithuania, no. 44558/98, §§ 100-101, ECHR 2001-VIII).
72. 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 the Convention provision in question 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 (Valašinas,
cited above, §
102; Kudła v. Poland
[GC], no. 30210/96, § 94, ECHR 2000-XI). When assessing conditions of
detention, account has to be taken of their cumulative effects as well as the
applicant's specific allegations (Dougoz
v. Greece, no. 40907/98, § 46, ECHR 2001-II).
B. Application of the above principles to the present
case
73. In the present case the applicant was held in the
psychiatric ward of the detention facility IZ-48/2 “Butyrskiy” in Moscow, also
referred to as SIZO-2. The Court assumes from the parties' submissions that the
period of the applicant's detention in the above facility lasted from 10 January
1999 until 23 May 2000, excluding one month from 24 November to 24 December 1999
when he was at the Serbskiy Forensic Psychiatry Institute, that is, a total of a
year, three months and thirteen days (see paragraphs 20, 38, 46, 50, 51, 57 and
58 above).
74. As regards the time spent in different cells, the
applicant's submissions indicate that he spent about eleven and a half months in
cells nos. 404 and 408, which both measured over 30 sq. m, and about four months
in cell no. 415 measuring less than 15 sq. m. The Government first asserted that
the applicant had been held in a smaller cell, no. 415, for four and a half
months and in two bigger cells, nos. 408 and 404, for the rest of the time.
However, no information was given in relation to the period between January and
April 1999 (see paragraph 57 above). Later, the Government claimed that for the
whole period of his confinement in the psychiatric ward the applicant had been
held in cells 408 and 415. No information on how long he was held in each was
provided (see paragraph 58 above).
75. Having regard to the above information of the
parties, the Court will proceed on the assumption that the applicant was held in
a smaller cell for about four and a half months and in a larger cell for eleven
months.
76. The Court will first examine the conditions of
detention in the bigger cell. The cell was 3 to 3.5 metres high and measured
32 sq. m, according to the applicant and 34.9 or 35.6 sq. m, according to the
Government. Given the number of bunk beds, it was designed for 24 persons
according to the applicant and 22 persons according to the Government (see
paragraphs 44 and 59 above). It actually held up to 26 inmates according to the
applicant and up to 35 inmates according to the Government (see paragraphs 44
and 59 above). The above numbers suggest that at any given time there was
between 1 and 1.6 sq. m of space per inmate in the applicant's cell and that he
did not always have a separate bed. Save for 30 to 40 minutes, according to the
applicant, or one hour, according to the Government, of daily outdoor walks in
exercise areas on the roof of the prison building, the applicant was confined to
his cell for all the time.
77. The applicant's situation is comparable with that in
the Kalashnikov
case, in which the applicant had been confined to a space measuring
0.9-1.9 sq. m. In that case the Court held that such a severe overcrowding
raised in itself an issue under Article 3 of the Convention (Kalashnikov
v. Russia, no. 47095/99, §§ 96-97, ECHR 2002-VI). In the
Peers case
even a much bigger cell – namely that of 7 sq. m for two inmates – was noted as
a relevant aspect for finding a violation of Article 3, albeit in that case the
space factor was coupled with the established lack of ventilation and lighting (Peers
v. Greece, no. 28524/95, §§ 70-72, ECHR 2001-III). By contrast, in some
other cases no violation of Article 3 was found, as the restricted space in the
sleeping facilities was compensated by the freedom of movement enjoyed by the
detainees during the day-time (Valašinas,
cited above, §§ 103 and 107;
Nurmagomedov v.
Russia (dec.), no. 30138/02, 16 September 2004).
78. Hence, as in those cases, the Court considers the
extreme lack of space to be the focal point for its analysis of compatibility of
the conditions of the applicant's detention with Article 3.
79. The Court observes further that as regards the
applicant's medical care and other conditions of his detention, including
heating, artificial lighting and ventilation, for the most part neither party
submitted evidence which could satisfy the Court “beyond reasonable doubt” in
whether they were acceptable from the point of view of Article 3. What can be
taken into account, however, is that the applicant appears to have been allowed
to take a shower once a week (see paragraphs 42 and 64 above) and that he became
infected with scabies (see paragraph 52 above). The Court also notes the
applicant's assertion that, in addition to the usual bars, there were metal
shutters on the windows, which were constructed so that inmates could not see
out of them and very little light could come in (see paragraphs 39 and 50
above). The Government did not initially contest this allegation. After the
admissibility decision in the case they submitted that no metal shutters had
been installed on the windows. A reference was made to a report on the
inspection of the cells by the health authority on 11 May 2004 and the following
statement by the head of SIZO-2 dated 11 May 2004:
“... None of the windows in the above-mentioned cells
[cells 404, 408 and 415] has shutters on them.”
The applicant submitted that
these metal shutters had been removed throughout the “Butyrskiy” detention
facility at the end of 2002 and that the Government's information reflected the
situation as of 2004. The Government did not object in reply.
80. The Court accepts that in the present case there is
no indication that there was a positive intention of humiliating or debasing the
applicant. However, although the question whether the purpose of the treatment
was to humiliate or debase the victim is a factor to be taken into account, the
absence of any such purpose cannot exclude a finding of violation of Article 3
(see Peers,
cited above).
81. The Court considers that the conditions of
detention, which the applicant had to endure for at least eleven months, must
have undermined the applicant's human dignity and aroused in him feelings of
humiliation and debasement. Whilst the Court notes with satisfaction that at
present the number of persons detained in the “Butyrskiy” detention facility is
half that in 1998 as a result of various measures aimed at bringing the
conditions of detention into compliance with domestic and international
standards, this does not detract from the wholly unacceptable conditions which
the applicant had clearly had to endure at the material time.
82. The Court does not find it necessary to examine
further the conditions of the applicant's detention in cell no. 415 as the above
considerations are sufficient to find a violation of Article 3 of the
Convention.
83. In the light of the above, the Court finds that the
applicant's conditions of detention, in particular the severe overcrowding and
its detrimental effect on the applicant's well-being, combined with the length
of the period during which the applicant was detained in such conditions,
amounted to degrading treatment.
84. Accordingly, there has been a violation of Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
85. The applicant complained that his detention on
remand had been excessive. He alleged a violation of Article 5 § 3 of the
Convention, the relevant part of which provides:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled to trial
within a reasonable time or to release pending trial. Release may be conditioned
by guarantees to appear for trial.”
86. The Government denied this violation.
A. Period to be taken into consideration
87. The Court reiterates that,
in determining the length of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the day the
accused is taken into custody under Article 5 § 1 (c) and ends on the day when
the charge is determined, even if only by a court of first instance (see, among
other authorities,
Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 23, § 9,
and Labita,
cited above, § 147).
88. The Court consequently
finds that the period to be taken into consideration in the present case began
on 13 October 1998, when the applicant was detained on suspicion of having
committed the offence, and ended on 4 April 2000, when the Gagarinskiy District
Court of Moscow determined the charge against him. The period in issue therefore
amounted to a year, five months and twenty-three days.
B. Reasonableness of the length of detention
1. Principles established by the Court's
case-law
89. The Court reiterates that the question of whether or
not a period of detention is reasonable cannot be assessed in the abstract.
Whether it is reasonable for an accused to remain in detention must be examined
in each case according to its special features. Continued detention can be
justified in a given case only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption of
innocence, outweighs the rule of respect for individual liberty laid down in
Article 5 of the Convention (see, among other authorities,
Kudla, cited
above, § 110).
90. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention of an
accused person does not exceed a reasonable time. To this end they must, paying
due regard to the principle of the presumption of innocence, examine all the
facts arguing for or against the existence of the above-mentioned requirement of
public interest justifying a departure from the rule in Article 5, and must set
them out in their decisions on the applications for release. It is essentially
on the basis of the reasons given in these decisions, and any well-documented
facts stated by the applicant in his appeals, that the Court is called upon to
decide whether or not there has been a violation of Article 5 § 3 (see, for
example, Labita,
cited above, § 152). Arguments for and against release must not be
“general and abstract” (see
Clooth v. Belgium,
judgment of 12 December 1991, Series A no. 225, p. 16, § 44).
91. The persistence of a reasonable suspicion that the
person arrested has committed an offence is a condition
sine qua non
for the lawfulness of the continued detention, but after a certain lapse of time
it no longer suffices. The Court must then establish whether the other grounds
given by the judicial authorities continued to justify the deprivation of
liberty. Where such grounds were “relevant” and “sufficient”, the Court must
also be satisfied that the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special characteristics of
the investigation are factors to be considered in this respect (see, for
example, Scott v.
Spain, judgment of 18 December 1996,
Reports
1996-VI, pp. 2399-00, § 74, and
I.A. v. France,
judgment of 23 September 1998,
Reports
1998-VII, p. 2978, § 102).
2. Application of the above principles to the
present case
(a) Grounds for detention
92. The Court observes that in the instant case the
reasons for the applicant's detention on 13 October 1998 referred to by the
authorities were the suppression of a crime of which the applicant was suspected
and the risk of his absconding (see paragraph 10 above). The latter factor,
together with the applicant's personality and the danger posed to the public by
the crime with which he had been charged, underpinned the decision to place the
applicant in detention on remand on 15 October 1998 (see paragraph 12 above).
Subsequently the Gagarinskiy District Court of Moscow, in refusing to release
the applicant, relied on “the nature of the crime committed” by him (see
paragraph 22 above) by which it appears the District Court meant the seriousness
of the charge against the applicant.
93. The Court reiterates first that the danger of
absconding cannot be gauged solely on the basis of the severity of the sentence
risked; it must be assessed with reference to a number of other relevant factors
which may either confirm the existence of a danger of absconding or make it
appear so slight that it cannot justify detention pending trial (see
Tomasi v. France,
judgment of 27 August 1992, Series A no. 241-A, p. 37, § 98). In the present
case the investigating authority failed to mention any factual circumstances
capable of showing the existence of the danger of the applicant's absconding.
Nor did it explain in its decision what peculiarities of the applicant's
personality warranted, in its view, his detention on remand.
94. As regards the danger posed to the public by the
crime with which the applicant had been charged, namely the acquisition of drugs
for personal consumption and possession, even assuming that there was a risk of
prejudice to public order at the beginning, which does not appear in itself a
persuasive consideration in the circumstances of the present case, it must have
disappeared after a certain time (see
Tomasi, cited
above, p. 36, § 91). This reason undoubtedly did not suffice to justify the
applicant's detention for more than a year.
95. The Court considers further that the reference by
the District Court to the seriousness of the alleged offence as the only ground
for the applicant's continued detention after he had spent a year and almost
five months in custody could not justify such a long period of pre-trial
detention (see, for example,
Scott, cited
above, p. 2401, § 78).
96. The Court accordingly
concludes that the reasons relied on by the investigating authority and the
court in their decisions were not sufficient to justify the applicant's being
held in detention for the period in question.
(b) Conduct of the proceedings
97. According to the applicant, the case was not at all
complex, involving only one charge against him. Thus, the investigation in the
case had been completed as early as 10 February 1999. The two in-patient
psychiatric examinations had lasted not more than two months. The adjournment of
hearings in the case had not been attributable to the applicant's
representatives as they had not been informed of the hearings concerned. As
regards the hearings adjourned on account of the failure of witnesses to appear,
no proper steps had been taken to execute the court's decisions that they be
brought to the court.
98. The Government acknowledged that, when ordering the
applicant's second psychiatric examination on 28 June 1999, the court had failed
to give reasons for its decision. The Government further asserted that the
length of the applicant's detention had been partially due to the applicant's
psychiatric examinations. The Government also submitted that the hearings in the
case had been repeatedly adjourned because of the failure of the applicant's
representatives and witnesses to appear.
99. The Court observes that it took the police four
months to investigate the case. During that time the applicant underwent a
psychiatric examination which found that he had committed the crime imputed to
him in a deranged state of mind and that he did not need to be placed in a
mental asylum, the out-patient psychiatric treatment being sufficient for his
diagnosis. The Court observes further that on 28 June 1999, after four months
had elapsed since the case was transferred to it, the Gagarinskiy District Court
of Moscow, without seeing the applicant and without giving the defence a chance
to object, decided to order a further psychiatric examination of the applicant.
No reasons were advanced for such a decision. The second in-patient psychiatric
examination was carried out four months after the above decision had taken
effect and took a month. Three more months elapsed before the court examined the
case. The Court notes that no evidence was submitted by the Government on which
to contest the applicant's statements that his representatives had not been
informed of the hearings which were adjourned on the ground of their failure to
appear and that no steps had been taken to bring before the court the witnesses
who had repeatedly failed to appear, thus protracting the proceedings.
100. The Court concludes that the length of the
proceedings is attributable neither to the complexity of the case nor to the
conduct of the applicant but to the lack of diligence and expedition on the part
of the Gagarinskiy District Court of Moscow.
(c) Conclusion
101. In view of the above considerations the Court finds
that there has been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
102. The applicant complained that, despite his numerous
requests, he had never appeared before the Gagarinskiy District Court of Moscow.
He alleged a violation of Article 6 § 1 of the Convention.
103. The Court considers that this complaint falls to be
examined under Article 6 §§ 1 and 3 (c) of the Convention, which, insofar as
relevant, provides:
“1. In the determination of
... any criminal charge against him, everyone is entitled to a fair and public
hearing ... by [a] ... 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 or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of
justice so require; ...”
A. The parties' submissions
104. The applicant submitted that the trial court's
reference to the refusal of the detention facility IZ-48/2 to bring him to court
had not been based on true facts. Another reason advanced by the court for
rejecting his request to appear at the hearing had been his criminal incapacity,
which had allegedly made it impossible to accept his testimony as evidence. The
applicant argued that such reasoning ran counter to the domestic law and that it
had never been established before the decision of the Gagarinskiy District Court
of Moscow of 4 April 2000 that he had been mentally disturbed or that he could
not be held criminally responsible on account of his mental illness. He
contended that it had been for the District Court to decide,
inter alia, on
his mental condition on the basis of all the evidence in the case and not merely
the expert opinion. The applicant further pointed out that the certificates
issued by the detention facility IZ-48/2 had given a positive assessment of his
behaviour and stated that his physical and mental health was satisfactory.
105. The Government submitted that the decision of the
Gagarinskiy District Court of Moscow not to summon the applicant had been based
on the expert opinion according to which the applicant had not been conscious
of, and could not control, his actions or perceive the circumstances relevant to
the case and give evidence on them. The Government stated that the above
decision of the District Court had been in compliance with Article 407 of the
Code of Criminal Procedure, which left the question of the appearance of a
mentally ill offender before the court to the latter's discretion. Such a person
enjoyed lesser procedural rights than an ordinary accused. The Government
further argued that the applicant's absence from the court hearings had not
adversely affected his rights, since his lawyers had been present.
B. The Court's assessment
106. The Court reiterates that it flows from the notion
of a fair trial that a person charged with a criminal offence should, as a
general principle, be entitled to be present and participate effectively in the
first-instance hearing (see
Colozza v. Italy,
judgment of 12 February 1985, Series A no. 89, pp. 14-15, §§ 27 and 29). In the
present case this requirement was not satisfied since the District Court decided
the applicant's case in his absence. It should be noted that he was not present
at the appeal hearing either. The Court will next consider whether the instant
case involved any circumstances which were capable of justifying a complete and
irreparable loss of the entitlement to take part in the hearing.
107. The Court notes that it is not here concerned with
an accused who expressly waived his right to appear at the hearing. On the
contrary, the applicant, who was in custody, and his lawyers filed requests with
the District Court for him to appear at the hearings in person. The requests
were rejected because the detention facility, in which the applicant was held,
did not allegedly transport ill detainees to court and, on another occasion,
because the testimony of a mentally disturbed person could not be accepted as
evidence (see paragraphs 23 and 24 above).
108. The Court recalls that the State is under an
obligation to secure the attendance of an accused who is in custody (see, with
necessary changes made,
Goddi v. Italy,
judgment of 9 April 1984, Series A no. 76, p. 11, § 29). The Court reiterates
further that the trial court may exceptionally continue hearings where the
accused is absent on account of illness, provided that his or her interests are
sufficiently protected (see
Ninn-Hansen v.
Denmark (dec.), no. 28972/95, p. 351, ECHR 1999-V). However, where
proceedings involve an assessment of personality and character of the accused
and his state of mind at the time of the offence and where their outcome could
be of major detriment to him, it is essential to the fairness of the proceedings
that he be present at the hearing and afforded the opportunity to participate in
it together with his counsel (see
Kremzow v. Austria,
judgment of 21 September 1993, Series A no. 268-B, p. 45, § 67;
Pobornikoff v.
Austria, no. 28501/95, § 31, 3 October 2000, and
Zana v. Turkey,
judgment of 25 November 1997,
Reports
1997-VII, p. 2551, §§ 71-73).
109. In the present case the authorities failed to take
any steps to secure the applicant's attendance at the hearings. There is no
indication that the applicant displayed any disturbed behaviour or that his
physical and mental condition otherwise precluded him from appearing before the
court. The District Court's argument that the applicant's presence at the
hearing was not required in that the testimony of the applicant as a mentally
disturbed person could not be accepted as evidence is striking given that it was
for the District Court to determine for the first time whether the applicant had
committed the offence in a deranged state of mind and assess whether his mental
condition required any compulsory medical care.
110. As regards the scope of the trial court's powers in
this case, the Court further observes that the District Court determined the
criminal charge against the applicant, found that he could not be held
responsible because he was suffering from a mental illness and ordered his
placement in a mental hospital.
111. As regards the latter, the Court notes that the
District Court had before it two psychiatric opinions drawn up by the same
forensic institution. Although concurring in essence on the applicant's
diagnosis, they differed on the measures it necessitated. The first opinion
asserted that there was no need to place the applicant in a mental asylum and
that psychiatric treatment as an out-patient would suffice, while the second
opinion claimed that the applicant's confinement in a mental asylum was
necessary. The Court considers that such an inconsistency, which had an impact
on the outcome of the proceedings and, ultimately, in the present case, on the
applicant's liberty, made the question of the applicant's participation in the
hearing particularly important.
112. In view of what was at stake for the applicant the
District Court could not, if the trial was to be fair, determine his case
without a direct assessment of the applicant's evidence, and the presence of the
applicant's lawyer could not compensate for his absence.
113. In view of the above considerations the Court finds
a breach of Article 6 §§ 1 and 3 (c) of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
114. 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. Non-pecuniary damage
115. The applicant claimed 100,000 euros (“EUR”) in
respect of non-pecuniary damage. He underlined the point that he had spent a
long time in the inhuman conditions of the detention facility SIZO-2 and then,
as a result of unfair court proceedings, had been confined in a mental hospital
while not being in need of such medical treatment. During that time his health
had deteriorated, he had been unable to work and maintain his family and his
relatives had incurred substantial expenses in providing him with food and other
living essentials for several years. He had suffered emotional distress as a
consequence of extensive violations of the domestic and international law in the
course of the proceedings against him.
116. The Government submitted first that the finding of
a violation would constitute sufficient satisfaction. They further argued that
in any event the claim was excessive, unreasonable and lacking in
substantiation, in which case a symbolic amount would be equitable.
117. The Court observes that some forms of non-pecuniary
damage, including emotional distress, by their very nature cannot always be the
object of concrete proof (see
Abdulaziz, Cabales
and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A
no. 94, p. 44, § 96). This does not prevent the Court from making an award if it
considers that it is reasonable to assume that an applicant has suffered injury
requiring financial compensation. In the present case the Court considers that
the applicant's prolonged detention on remand in conditions amounting to
degrading treatment and disregard for his right to appear before the trial court
in criminal proceedings brought against him must have caused him distress,
frustration and uncertainty which cannot be compensated solely by the finding of
a violation.
118. Deciding on an equitable basis, the Court awards
the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
119. The applicant claimed 14,775 US dollars (“USD”) in
respect of his representation by Mr A.A. Rekant, a member of Human Rights NGO
Комитет за
Гражданские Права, in the domestic proceedings and the proceedings before
this Court and in respect of translation costs. The applicant further claimed
USD 644, 2,694.6 Russian roubles (“RUR”) and 791.34 Ukrainian hryvnas (“UAH”)
for travel expenses relating to Mr A.A. Rekant's visits to Odessa, where the
applicant was detained, for a meeting with him. Lastly, he claimed RUR 3,561.86
for postage and telephone expenses.
120. The Government argued that the expenses were not
properly substantiated: for instance postal receipts did not bear the payer's
name.
121. The Court reiterates that in order for costs and
expenses to be included in an award under Article 41, it must be established
that that they were actually and necessarily incurred in order to prevent or
obtain redress for the matter found to constitute a violation of the Convention
and were reasonable as to quantum (see, for example,
Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
122. Having regard to the material submitted and
deciding on an equitable basis, the Court awards the applicant EUR 1,500 for
legal costs, less EUR 872 received by way of legal aid from the Council of
Europe, plus any tax that may be chargeable on that amount. As regards the
remaining costs and expenses claimed, it finds that RUR 4,519.99 and UAH 620.36
were shown to have been actually and necessarily incurred, which amounts it
awards the applicant, plus any tax that may be chargeable on those amounts.
C. Default interest
123. 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. Holds
that there has been a violation of Article 3 of the Convention;
2. Holds
that there has been a violation of Article 5 § 3 of the Convention;
3. Holds
that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
4. 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 § 2 of the Convention, the following amounts:
(i) EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(ii) EUR 628 (six hundred twenty-eight euros) in
respect of legal costs, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(iii) RUR 4,519.99 (four thousand five hundred
nineteen Russian roubles ninety nine kopecks) and UAH 620.36 (six hundred twenty
Ukrainian hryvnas thirty six kopiykas) in respect of other expenses, the latter
amount to be converted into Russian roubles at the rate applicable at the date
of settlement;
(iv) any tax that may be chargeable on the above
amounts;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts 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 20
October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan
M. Zupančič
Registrar President
