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Стр. 5
spreading. The dining table was fixed to the floor just a few
metres from the pan. His description was corroborated by written
depositions by former cellmates, Mr Kayumov, Mr Gunin, Mr Kelerman
and Mr Sergey Kalenik, and four colour photos showing the lavatory
pan and the dining table from various angles.
(c) Food
64. The Government asserted that "the applicant was fed in
accordance with the established legal norms". It appears from an
undated certificate signed by the facility director that his daily
diet consisted of 100 g of meat, 100 g of fish, 100 g of groats,
20 g of pasta, 20 g of salt, 1 g of tea [sic], 0.5 kg of potatoes,
0.25 kg of vegetables, 0.55 kg of bread.
65. The applicant submitted that the food was of an extremely
low quality. Many a meal only contained so-called balanda, a soup-
like mix of millet, barley and pasta without any fat. Meat was
replaced with a soya substitute. No fresh vegetables were given,
occasionally the evening meal included cooked beetroot, sauerkraut
or pickled cucumbers. Salt and tea were never distributed. Written
depositions by four of the applicant's former cellmates confirmed
these submissions.
(d) Outdoor exercise
66. The parties agreed that the applicant had been entitled to
a daily walk of about one hour. The applicant indicated, however,
that he was not able to go outdoors on days when there were court
hearings.
67. The Government did not describe the outdoor conditions. The
applicant, and four former cellmates in written depositions,
portrayed the following picture of the exercise yards: The yards
were closed premises measuring 12, 26 or 40 sq. m. The opening to
the sky was covered with a metal roof with a one-metre gap between
the roof and the top of the walls. In summer it was extremely hot
and stifling inside as the sun heated the roof. The walls were
coated with so-called shuba, a sort of abrasive concrete lining,
designed to prevent detainees from leaning on the walls. The
entire cell population was brought to the yard at once;
occasionally it was impossible to move around, let alone to
exercise, because of the sheer number of prisoners.
(e) Other issues
68. According to the applicant, metal blinds that prevented
natural light getting into the cells were only removed on 28
December 2002 after a delegation that included a representative of
the Council of Europe had paid a visit to Vladimir detention
facilities. The Government did not contest that information.
(f) Contact with the outside world
69. The applicant's relatives were not permitted to see him
throughout the pre-trial investigation. After the trial began, he
was allowed four short visits by his wife, children, sister and
brother. At these meetings the applicant and his parents were
prohibited from talking in any language other than Russian. The
applicant was likewise prohibited from corresponding with his
relatives other than in Russian: the facility administration
refused to dispatch or hand over letters written in Tajik.
70. The Government explained that these restrictions had been
due to the lack of a staff interpreter from Tajik in the facility.
2. Conditions of the applicant's transport to
and from the courthouse
71. The applicant was transported from the remand centre to the
Vladimir Regional Court for hearings on 205 occasions; of these
hearings, 185 concerned the charges against him and 20
applications for extensions of detention. The applicant offered
the following description of these days, which was corroborated by
written depositions from four former cellmates.
72. On the day of the hearing he was woken up at 4 or 5 a.m. At
about 8 a.m. he was taken from his cell to the so-called "assembly
cell", together with other detainees who had a hearing on that
day. Each "assembly cell" measured 9.2 to 9.9 sq. m and housed 10
to 20 prisoners. "Assembly cells" had no ventilation system and
the air was soon heavy with smoke. At about 9 or 9.30 a.m. the
applicant was taken to a van.
73. The prison van had one collective compartment designed for
four prisoners and six individual compartments of one sq. m. It
was designed to carry ten prisoners. However, it transported
between 15 and 20 and on one occasion 27 detainees. The applicant
was put in an individual compartment together with another
prisoner. Owing to the lack of space, one of them would sit on the
bench and the other on his lap. The route to the Vladimir Regional
Court took one hour and the van called at other facilities on its
way.
74. The applicant did not normally arrive back at the prison
until 6 or 8 p.m. During the day he received no food or outdoor
exercise and was liable to miss out on the shower he was allowed
periodically.
75. The Government submitted that the applicant had been
transported in special prison vans that met the standard
requirements. The route from facility No. OD-1/T-2 to the Vladimir
Regional Court was eight kilometres long and took thirty minutes.
II. Relevant domestic law
76. Until 1 July 2002 criminal-law matters were governed by the
Code of Criminal Procedure of the Russian Soviet Federalist
Socialist Republic (Law of 27 October 1960, "the old CCrP"). From
1 July 2002 the old CCrP was replaced by the Code of Criminal
Procedure of the Russian Federation (Law No. 174-FZ of 18 December
2001, "the new CCrP").
A. Preventive measures
77. "Preventive measures" or "measures of restraint" (меры
пресечения) include an undertaking not to leave a town or region,
personal security, bail and detention on remand (Article 89 of the
old CCrP, Article 98 of the new CCrP).
B. Authorities ordering detention on remand
78. The Russian Constitution of 12 December 1993 establishes
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention on remand
could be taken by a prosecutor or a court (Articles 11, 89 and
96).
The new CCrP requires a judicial decision by a district or town
court on a reasoned request by a prosecutor supported by
appropriate evidence (Article 108 зз 1, 3 - 6).
C. Grounds for ordering detention on remand
79. When deciding whether to remand an accused in custody, the
competent authority is required to consider whether there are
"sufficient grounds to believe" that he or she would abscond
during the investigation or trial or obstruct the establishment of
the truth or re-offend (Article 89 of the old CCrP). It must also
take into account the gravity of the charge, information on the
accused's character, his or her profession, age, state of health,
family status and other circumstances (Article 91 of the old CCrP,
Article 99 of the new CCrP).
80. Before 14 March 2001, detention on remand was authorised if
the accused was charged with a criminal offence carrying a
sentence of at least one year's imprisonment or if there were
"exceptional circumstances" in the case (Article 96). On 14 March
2001 the old CCrP was amended to permit defendants to be remanded
in custody if the charge carried a sentence of at least two years'
imprisonment or if they had previously defaulted or had no
permanent residence in Russia or if their identity could not be
ascertained. The amendments of 14 March 2001 also repealed the
provision that permitted defendants to be remanded in custody on
the sole ground of the dangerous nature of the criminal offence
they committed. The new CCrP reproduced the amended provisions
(Articles 97 з 1 and 108 з 1) and added that a defendant should
not be remanded in custody if a less severe preventive measure was
available.
D. Time-limits for detention on remand
1. Two types of detention on remand
81. The Codes distinguished between two types of detention on
remand: the first being "pending the investigation", that is while
a competent agency - the police or a prosecutor's office -
investigated the case, and the second "before the court" (or
"during the trial"), that is while the case was being tried in
court. Although there was no difference in practice between them
(the detainee was held in the same detention facility), the
calculation of the time-limits was different.
2. Time-limits for detention "pending the investigation"
82. After arrest the suspect is placed in custody "pending the
investigation". The maximum permitted period of detention "pending
the investigation" is two months but it can be extended for up to
eighteen months in "exceptional circumstances". Extensions were
authorised by prosecutors of ascending hierarchical levels (under
the old CCrP) but must now be authorised by judicial decisions
taken by courts of ascending levels (under the new CCrP). No
extension of detention "pending the investigation" beyond eighteen
months is possible (Article 97 of the old CCrP, Article 109 з 4 of
the new CCrP).
83. The period of detention "pending the investigation" is
calculated to the day when the prosecutor sent the case to the
trial court (Article 97 of the old CCrP, Article 109 з 9 of the
new CCrP).
84. Access to the file materials is to be granted no later than
one month before the expiry of the authorised detention period
(Article 97 of the old CCrP, Article 109 з 5 of the new CCrP). If
the defendant needs more time to study the case-file, a judge, on
a request by a prosecutor, may grant an extension of detention
until such time as the file has been read in full and the case
sent for trial (Article 97 of the old CCrP, Article 109 з 8 (1) of
the new CCrP). Under the old CCrP, such an extension could not be
granted for longer than six months.
85. Under the old CCrP, the trial court had the right to remit
the case for an "additional investigation" if it established that
procedural defects existed that could not be remedied at the
trial. In such cases the defendant's detention was again
classified as "pending the investigation" and the relevant time-
limit continued to apply. If, however, the case was remitted for
an additional investigation, but the investigators had already
used up all the time authorised for detention "pending the
investigation", a supervising prosecutor could nevertheless extend
the detention period for one additional month starting from the
date he received the case. Subsequent extensions could only be
granted if the detention "pending the investigation" had not
exceeded eighteen months (Article 97).
3. Time-limits for detention "before
the court"/"during the trial"
86. From the date the prosecutor forwards the case to the trial
court, the defendant's detention is "before the court" (or "during
the trial").
87. Before 14 March 2001 the old CCrP set no time-limit for
detention "during the trial". On 14 March 2001 a new Article 239-1
was inserted which established that the period of detention
"during the trial" could not generally exceed six months from the
date the court received the file. However, if there was evidence
to show that the defendant's release might impede a thorough,
complete and objective examination of the case, a court could - of
its own motion or on a request by a prosecutor - extend the
detention by no longer than three months. These provisions did not
apply to defendants charged with particularly serious criminal
offences.
88. The new CCrP establishes that the term of detention "during
the trial" is calculated from the date the court received the file
and to the date the judgment is given. The period of detention
"during the trial" may not normally exceed six months, but if the
case concerns serious or particularly serious criminal offences,
the trial court may approve one or more extensions of no longer
than three months each (Article 255 зз 2 and 3).
E. Proceedings to examine the lawfulness of detention
During detention "pending the investigation"
89. Under the old CCrP, the detainee or his or her counsel or
representative could challenge the detention order issued by a
prosecutor, and any subsequent extension order, before a court.
The judge was required to review the lawfulness of and
justification for a detention or extension order no later than
three days after receipt of the relevant papers. The review was to
be conducted in camera in the presence of a prosecutor and the
detainee's counsel or representative. The detainee was to be
summoned and a review in his absence was only permissible in
exceptional circumstances if the detainee waived his right to be
present of his own free will. The judge could either dismiss the
challenge or revoke the pre-trial detention and order the
detainee's release (Article 220-1).
An appeal to a higher court lay against the judge's decision.
It had to be examined within the same time-limit as appeals
against a judgment on the merits (see paragraph 96 below) (Article
331 in fine).
90. Under the new CCrP, an appeal may be lodged with a higher
court within three days against a judicial decision ordering or
extending detention on remand. The appeal court must decide the
appeal within three days after its receipt (Article 108 з 10).
During the trial
91. Upon receipt of the case-file, the judge must determine, in
particular, whether the defendant should remain in custody or be
released pending trial (Articles 222 з 5 and 230 of the old CCrP,
Articles 228 (3) and 231 з 2 (6) of the new CCrP) and rule on any
application by the defendant for release (Article 223 of the old
CCrP). If the application was refused, a fresh application could
be made once the trial had commenced (Article 223 of the old
CCrP).
92. At any time during the trial the court may order, vary or
revoke any preventive measure, including detention on remand
(Article 260 of the old CCrP, Article 255 з 1 of the new CCrP).
Any such decision must be given in the deliberations room and
signed by all the judges in the formation (Article 261 of the old
CCrP, Article 256 of the new CCrP).
93. An appeal against such a decision lies to the higher court.
It must be lodged within ten days and examined within the same
time-limit as an appeal against the judgment on the merits
(Article 331 of the old CCrP, Article 255 з 4 of the new CCrP -
see paragraph 96 below).
F. Time-limits for trial
94. Under the old CCrP, within fourteen days after receipt of
the case-file (if the defendant was in custody), the judge was
required either: (1) to fix the trial date; (2) to return the case
for an additional investigation; (3) to stay or discontinue the
proceedings; or (4) to refer the case to a court having
jurisdiction to hear it (Article 221). The new CCrP empowers the
judge, within the same time-limit, (1) to refer the case to a
competent court; (2) to fix a date for a preliminary hearing
(предварительное слушание); or (3) to fix a date for trial
(Article 227). The trial must begin no later than fourteen days
after the judge has fixed the trial date (Article 239 of the old
CCrP, Article 233 з 1 of the new CCrP). There are no restrictions
on fixing the date of a preliminary hearing.
95. The duration of the trial is not limited in time.
96. Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten
days of its receipt. In exceptional circumstances or in complex
cases or in proceedings before the Supreme Court this time-limit
could be extended by up to two months (Article 333). No further
extensions were possible.
The new CCrP establishes that the appeal court must start the
examination of the appeal no later than one month after its
receipt (Article 374).
III. Relevant international instruments
97. 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 at 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
time.
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.
45... (2) The transport of prisoners in conveyances with
inadequate ventilation or light, or in any way which would subject
them to unnecessary physical hardship, shall be prohibited..."
98. 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]
"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 violations of Article 3 of the Convention
99. The applicant complained that the conditions of his
detention in facility No. OD-1/T-2 "Vladimirskiy Tsentral" and
transport to and from the courthouse were in breach of 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. Conditions of detention in facility No. OD-1/T-2
1. The parties' submissions
100. The Government submitted that, while in facility No. OD-
1/T-2 the applicant had had at all times no less than 2 sq. m for
himself. He had been assigned an individual bunk and given
bedding. The sanitary conditions were satisfactory, there was
running tap water and detainees could use their own immersion
heaters. The applicant had had at least one hour of outdoor
activity daily and the food was in compliance with the applicable
standards. The applicant had been permitted to talk to his
relatives, and to correspond with them, in Russian because there
was no staff interpreter from Tajik and because the law did not
provide for the presence of an interpreter during parental visits.
The applicant had not complained of harassment by or threats from
other detainees or the facility wardens.
101. The applicant challenged the Government's submissions as
factually inaccurate. He indicated that the number of inmates per
cell had been significantly greater than that suggested by the
Government, that cells were infected with parasites and
excessively humid. The placement and partitioning of the lavatory
pan offered no privacy whatsoever and contributed to a further
infestation of the cell. The quality of food was wholly
unsatisfactory. There was no real opportunity for outdoor exercise
because the exercise yards were overcrowded and also covered with
metal roofs that severely limited access to fresh air. The
applicant submitted that the conditions of his detention fell foul
of paragraphs 12, 15 and 20 (1) and (2) of the Standard Minimum
Rules for the Treatment of Prisoners (cited above). He considered
that the requirement to speak in Russian to his small children who
spoke only Tajik had been degrading and humiliating. He finally
indicated that, upon his release, he had been diagnosed with
several diseases, such as hypertension and prostatitis, that had
been contracted during his detention.
The Court's assessment
102. 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 [GC],
No. 26772/95, з 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
({Valasinas} v. Lithuania, No. 44558/98, зз 100 - 101, ECHR 2001-
VIII).
103. 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 ({Valasinas}, cited above, з 102; {Kudla} v.
Poland [GC], No. 30210/96, з 94, ECHR 2000-XI). When assessing
conditions of detention, one must consider their cumulative
effects as well as the applicant's specific allegations (Dougoz v.
Greece, No. 40907/98, з 46, ECHR 2001-II). The duration of
detention is also a relevant factor.
104. The Court notes that in the present case the parties have
disputed the actual conditions of the applicant's detention at
facility No. OD-1/T-2 of Vladimir. However, there is no need for
the Court to establish the truthfulness of each and every
allegation, because it finds a violation of Article 3 on the basis
of the facts that have been presented or are undisputed by the
respondent Government, for the following reasons.
105. The main characteristic, which the parties have agreed
upon, are the measurements of the cells. The applicant claimed
that the cell population severely exceeded their design capacity;
the Government produced a certificate from the facility director
showing that at times the number of inmates was greater than that
of the available bunks (cells Nos. 4-13, 4-9, 3-3, 3-51, see
paragraph 59 above). It follows that the detainees, including the
applicant, had to share the sleeping facilities, taking turns to
rest. In smaller, 12 or 24 sq. m cells in wing No. 4 where the
applicant was kept until December 2000, inmates were afforded less
than 2 sq. m of personal space, and in the larger capacity
dormitories of wing No. 3, where the applicant stayed until his
release in May 2004, detainees had less than 3 sq. m of personal
space, even when the cell was filled below its design capacity.
The parties also agree that, save for one hour of daily outdoor
exercise, for the remainder of the day the applicant was locked in
the cell which contained all the facilities used by prisoners on a
daily basis, such as the washbasin, lavatory and eating utensils.
The applicant was held in these conditions for more than four
years and three months.
106. In this connection the Court notes that in the Peers case
even a much bigger cell (7 sq. m for two inmates) was considered a
relevant factor in finding a violation of Article 3, albeit in
that case the problem of space was coupled with an established
lack of ventilation and lighting (Peers v. Greece, No. 28524/95,
зз 70 - 72, ECHR 2001-III). The present situation is also
comparable with that in the Kalashnikov case, where the applicant
was confined to a space measuring less than 2 sq. m. In that case
the Court held that such a degree of overcrowding in itself raised
an issue under Article 3 of the Convention (Kalashnikov v. Russia,
No. 47095/99, зз 96 - 97, ECHR 2002-VI). By contrast, in other
cases no violation of Article 3 was found, as the restricted space
for sleeping was compensated for by the freedom of movement
enjoyed by the detainees during the day-time ({Valasinas}, cited
above, зз 103 and 107; Nurmagomedov v. Russia (dec.), No.
30138/02, 16 September 2004).
107. The Court considers the lack of space to be the focal
point of its analysis. The fact that the applicant was obliged to
live, sleep and use the toilet in the same cell with so little
personal space was itself sufficient to cause distress or hardship
of an intensity exceeding the unavoidable level of suffering
inherent in detention, and to arouse within him feelings of
anguish and inferiority capable of humiliating and debasing him
(Peers and Kalashnikov, cited above, loc. cit.; see also the CPT's
11th General Report, з 29). These feelings were further
exacerbated by the inordinate length of his detention.
108. Furthermore, while in the present case it cannot be
established "beyond reasonable doubt" that the ventilation,
heating, lighting or sanitary conditions in the facility were
unacceptable from the standpoint of Article 3, the Court notes
with concern that the lavatory had no flush system, that until
December 2002 the cell windows were covered with metal shutters
blocking access to fresh air and natural light (cf. CPT's 11th
General Report, з 30) and that the applicant was only permitted to
talk to his close relatives in a language they did not master,
which made contact with his family more difficult. The Government
did not suggest that such restrictions were based on security
concerns of an appreciable nature (cf. CPT's 2nd General Report, з
51). These aspects combined with the lack of personal space show
that the applicant's detention conditions went beyond the
threshold tolerated by Article 3 of the Convention.
109. The Court therefore finds that there has been a violation
of Article 3 of the Convention as regards the conditions of the
applicant's detention in facility No. OD-1/T-2.
B. Conditions of transport between the facility
and the courthouse
1. The parties' submissions
110. The Government submitted that the conditions of transport
were compatible with domestic standards and that the convoy
service personnel had not committed any breaches of applicable
laws.
111. The applicant claimed that the conditions of transport
between the detention facility and the Vladimir Regional Court
were inhuman and degrading. "Assembly cells" and passenger
compartments were severely overcrowded and gave no access to
natural light or air. He was not given food or drink for the
entire day and the cumulative effect of these conditions was
mental and physical exhaustion. In his view, such conditions were
incompatible with paragraph 45 (2) of the Standard Minimum Rules
for the Treatment of Prisoners.
2. The Court's assessment
112. The Court reiterates that allegations of ill-treatment
must be supported by appropriate evidence. In assessing evidence,
the Court has generally applied the standard of proof "beyond
reasonable doubt". However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see
Salman v. Turkey [GC], No. 21986/93, з 100, ECHR 2000-VII).
113. The Court notes that the only account of the conditions of
transport from the remand facility to the Vladimir Regional Court
is that furnished by the applicant. His account is corroborated by
the written statements of four former cellmates. The Court
reiterates that 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 Ahmet {Ozkan} and Others v. Turkey,
No. 21689/93, з 426, 6 April 2004).
114. It is true that in the present case the applicant was not
able to take exact measurements of the prison-van compartments or
obtain certificates showing the occupancy level. However, the
Government could have readily submitted details in support of
their contentions, but did not do so and gave no reasons for
withholding such information. In fact, they confined themselves to
asserting that the conditions were compatible with applicable
standards and that the travel time was half as long as that
claimed by the applicant. No copy of the standards or regulations
on prison vans was submitted. In these circumstances the Court
will examine the merits of the complaint on the basis of the
applicant's submissions.
115. The applicant submitted that on the days of court hearings
he was transported to the courthouse by a prison van in which he
shared a 1 sq. m "individual" compartment with another prisoner.
He received no food during the entire day and missed out on
outdoor exercise and on occasions the chance to take a shower.
116. The Court has not previously examined the compatibility of
transport conditions as such with the requirements of Article 3 of
the Convention (however, as regards handcuffing and/or
blindfolding of detainees during transport, see {Ocalan} v. Turkey
[GC], No. 46221/99, зз 182 - 184, ECHR 2005-...; and Raninen v.
Finland, judgment of 16 December 1997, Reports 1997-VIII, зз 56 -
59). It will therefore seek guidance from the findings of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment (CPT).
117. As regards the transport of prisoners, the CPT has
considered individual compartments measuring 0.4, 0.5 or even 0.8
sq. m to be unsuitable for transporting a person, no matter how
short the duration (see CPT/Inf (2004) 36 [Azerbaijan], з 152;
CPT/Inf (2004) 12 [Luxembourg], з 19; CPT/Inf (2002) 23 [Ukraine],
з 129; CPT/Inf (2001) 22 [Lithuania], з 118; CPT/Inf (98) 13
[Poland], з 68). In the present case the individual compartments
in the prison van (measuring one sq. m) would not appear to have
been in breach of the CPT's standards, assuming that the design
capacity was not exceeded and that they were sufficiently lit,
ventilated and heated and equipped with adequate seating and
fixtures that would prevent prisoners from losing their balance
when the vehicle moves (cf. CPT/Inf (2002) 36 [Slovenia], з 95).
118. However, the applicant had to share the individual
compartment with another detainee, the two men taking turns to sit
on the other's lap. The above-mentioned CPT's findings suggest
that it would not have found that situation acceptable. The Court
likewise considers that the placement of two prisoners in a one
sq. m compartment with only one seat was unacceptable. The
Government claimed that the journey took only thirty minutes, but
the applicant said that the van called at other facilities on the
way. As the detainees remained inside the van during that time, it
would be appropriate to base the assessment on the applicant's
submission that the journey lasted up to one hour. In any event,
the Court finds that such transport arrangements are
impermissible, irrespective of the duration.
119. The Court observes that the applicant had to endure these
crammed conditions twice a day, on the way to and from the
courthouse and that he was transported in that van no fewer than
200 times in four years of detention. On those days he received no
food and missed outdoor exercise. It is also relevant to the
Court's assessment that the applicant continued to be subjected to
such treatment during his trial or at the hearings of applications
for his detention to be extended, that is when he most needed his
powers of concentration and mental alertness.
120. The Court finds that the treatment to which the applicant
was subjected during his transport to and from the Vladimir
Regional Court exceeded the minimum level of severity and that
there has been a violation of Article 3 of the Convention.
II. Alleged violations of Article 5 зз 1 of the Convention
121. The applicant complained under Article 5 з 1 (c) of the
Convention that his detention on remand was not lawful. The
relevant parts of Article 5 read as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an
offence or fleeing after having done so..."
1. The parties' submissions
122. The applicant contended that on 8 August 2001 the Supreme
Court had quashed the extension order of 28 April 2001 as unlawful
and remitted the issue of his detention for re-examination;
accordingly, his detention from 28 April 2001 onwards was not
"lawful" within the meaning of Article 5 з 1. After the case was
sent for trial on 4 September 2001, it took the Regional Court
more than four months - instead of the fourteen days required by
the old CCrP - to hold the first hearing and examine the request
for release. The decision of 9 January 2002 was deficient in its
reasoning: the applicant was remanded in custody solely on account
of the gravity of the charges against him. The applicant further
submitted that neither the Regional Court's decision of 13 March
2002 nor the Supreme Court's decision of 12 September 2002 had
addressed the arguments for or against his release. He indicated
that on 12 September 2002 the Supreme Court had heard the appeal
for thirty minutes only. The applicant complained that on 18
November 2002 the Regional Court had extended his detention
retrospectively to cover the preceding 2 months and 15 days and
that a similar retrospective extension had been made on 4 December
2002 in respect of the previous day.
123. The Government averred that the entire term of detention
was compatible with the domestic procedural rules and free from
arbitrariness. On 28 April 2001 the Vladimir Regional Court had
authorised the applicant's detention until 4 September 2001 so as
to afford him additional time to read the case file. On 8 August
2001 the Supreme Court quashed that decision on procedural grounds
and held that the applicant should remain in custody. From 4
September 2001 to 9 January 2002 the Vladimir Regional Court
examined the applicant's case. From 13 March to 7 October 2002 the
case was examined by the Supreme Court of the Russian Federation.
In the Government's opinion, the Russian rules of criminal
procedure did not require the applicant's detention to be extended
during the latter period. On 12 September 2002 the Supreme Court
returned the case file to the Vladimir Regional Court which
received it on 7 October 2002. By that time the new CCrP had come
into effect, and a new hearing was scheduled for 18 November 2002.
On the latter date the applicant's detention was extended until 3
December 2002.
2. The Court's assessment
(a) General principles
124. The Court reiterates that the expressions "lawful" and "in
accordance with a procedure prescribed by law" in Article 5 з 1
essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof.
However, the "lawfulness" of detention under domestic law is
not always the decisive element. The Court must in addition be
satisfied that detention during the period under consideration was
compatible with the purpose of Article 5 з 1 of the Convention,
which is to prevent persons from being deprived of their liberty
in an arbitrary fashion.
125. The Court must moreover ascertain whether domestic law
itself is in conformity with the Convention, including the general
principles expressed or implied therein. On this last point, the
Court stresses that, where deprivation of liberty is concerned, it
is particularly important that the general principle of legal
certainty be satisfied. It is therefore essential that the
conditions for deprivation of liberty under domestic law be
clearly defined and that the law itself be foreseeable in its
application, so that it meets the standard of "lawfulness" set by
the Convention, a standard which requires that all law be
sufficiently precise to allow the person - if need be, with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may
entail (see {Jecius} v. Lithuania, No. 34578/97, з 56, ECHR 2000-
IX; Baranowski v. Poland, No. 28358/95, зз 50 - 52, ECHR 2000-
III).
(b) Scope of the Court's review
126. In its decision of 22 February 2005 on the admissibility
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