Судебное дело "Захаркин против России"
17.06.2010
FIRST SECTION
CASE OF ZAKHARKIN v. RUSSIA
(Application no. 1555/04)
JUDGMENT
STRASBOURG
10 June 2010
This judgment will become final in the circumstances set out in
Article 44 S: 2 of the Convention. It may be subject to editorial
revision.
In the case of Zakharkin v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Christos Rozakis, President,
Nina Vaji,
Anatoly Kovler,
Khanlar Hajiyev,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Sren Nielsen, Section Registrar,
Having deliberated in private on 20 May 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1555/04) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by a Russian national, Mr Valeriy Alekseyevich
Zakharkin ("the applicant"), on 2 December 2003.
2. The applicant was represented by Ms A. Demeneva, a lawyer with the
Urals Centre for Constitutional and International protection of Human
Rights. The Russian Government ("the Government") were initially
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mr G. Matyushkin.
3. The applicant alleged, in particular, that he had been detained in
appalling conditions, that he had not received adequate medical care
in detention, that the criminal proceedings against him had been
unfair and that the effective exercise of his right of petition had
been hindered by the authorities.
4. On 9 June 2008 the President of the First Section decided to
communicate the above complaints to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 S: 3).
5. On 23 November 2009 the President made a decision on priority
treatment of the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1970. He is now serving his sentence in
the Perm Region.
A. The applicant's arrest and detention at the police station on
15 and 16 October 1999
7. On 15 October 1999 the applicant was arrested in Yekaterinburg on
suspicion of robbery. He was allegedly beaten up by the police. At
about midnight he was put in a cell at the Kirovskiy District police
station.
8. The applicant stayed in the cell until 5.40 p.m. on 16 October
1999. The cell was not equipped with a bunk or a bench. The applicant
remained handcuffed all the time. He was not given any food and was
escorted to the toilet only once, in the morning.
9. By letter of 11 June 2003, the head of the Kirovskiy District
police station of Yekaterinburg confirmed that the cells in the police
station were not equipped with bunks or benches and that detainees
were not provided with food.
B. The applicant's detention in the temporary detention facilities in
Yekaterinburg and Ozersk from 16 October to 25 November 1999
10. On 16 October 1999 the applicant was transported to the
Yekaterinburg temporary detention facility.
11. A certificate issued on 29 August 2002 by the doctor of the
Yekaterinburg temporary detention facility indicates that the
applicant was held in the facility from 16 to 25 October 1999. A
medical examination revealed a bruise on his right eye and abrasions
on his face.
12. On 25 October 1999 the applicant was transferred to remand centre
no. IZ-66/1 in Yekaterinburg.
13. On 2 November 1999 he was escorted to the prosecutor's office,
where he was questioned. After questioning he was transported to the
Ozersk Town temporary detention facility in the Sverdlovskiy Region.
On his way there the escorting officers allegedly beat him and urged
him to confess. Once in the detention facility, the applicant signed a
confession statement.
14. The applicant remained in the Ozersk Town temporary detention
facility until 25 November 1999. He was held in a solitary cell
measuring 2 sq. m. The cell was not equipped with a bunk or toilet
facilities. The applicant was escorted to the toilet twice a day. He
was given bread and tea three times a day. The window allegedly had no
glazing and it was extremely cold in the cell. A certificate issued by
the Federal Meteorological Service indicates that the outside
temperature in November 1999 ranged from 6 C to - 21 C.
15. On 25 November 1999 the applicant was transported to remand
centre no. IZ-66/1 in Yekaterinburg, where he remained for the entire
duration of the criminal proceedings against him.
16. On 2 and 3 December 1999 the applicant allegedly complained to
the prosecutor's office that he had been ill-treated by the police. He
did not receive any reply. He did not produce copies of his
complaints.
C. The criminal proceedings against the applicant
17. The trial started on 18 December 2001 in the Sverdlovskiy
Regional Court. It transpires from the trial record that on 20 March
2002 the presiding judge Ms G. chose by lot, from a list of ten names,
two lay judges and a substitute lay judge to examine the applicant's
case. The formation thus included the presiding judge Ms G., two lay
judges, Ms T. and Ms O., and a substitute lay judge, Ms Ye.
18. On 19 September 2002 the Sverdlovskiy Regional Court convicted
the applicant of several counts of armed robbery, murder and attempted
murder of a policeman and sentenced him to life imprisonment. The
applicant appealed, complaining, in particular, about the allegedly
unlawful composition of the trial court.
19. On 3 June 2003 Ms Perevoshchikova, counsel for the applicant,
asked the President of the Sverdlovskiy Regional Court for information
about the appointment and terms of office of the lay judges Ms T., Ms
O. and Ms Ye. On 17 July 2003 a deputy President of the Sverdlovskiy
Regional Court replied that all judges of the Sverdlovskiy Regional
Court were competent to try criminal cases at first instance. He
disclosed no details about the appointment procedure or terms of
office of the lay judges.
20. On 28 August 2003 the Supreme Court of the Russian Federation
rejected the applicant's request to allow the lawyer Ms Demeneva to
act as his counsel, on the grounds that she was not a professional
advocate and was not present at the appeal hearing. It was also noted
that the applicant was represented by Ms Perevoshchikova, counsel. The
court then examined the applicant's appeal and upheld the conviction.
It held that no breach of the rules on the appointment of lay judges
had been established.
21. On 8 September 2003 counsel for the applicant applied to the
President of the Sverdlovskiy District Court for permission to access
copies of judgments delivered by the Sverdlovskiy District Court
between 1999 and 2002, in order to verify whether the lay judges Ms
T., Ms O. and Ms Ye. had participated in other criminal cases during
those years. She also asked the President whether the names of the lay
judges had been drawn at random by lot as required by the Lay Judges
Act.
22. By undated letter the President of the Sverdlovskiy Regional
Court refused access to the court's archives, stating that counsel
could only study the applicant's case file. Ms T. and Ms O. had been
appointed as lay judges in 1993, while Ms Ye. had been appointed in
1999. Their terms of office had been extended by presidential decrees.
He further mentioned that the names of the lay judges had been drawn
by lot, but refused to send a copy of the records.
23. On 30 September 2003 the head of the secretariat of the
Sverdlovskiy Regional Legislature informed counsel for the applicant
that the list of lay judges for the courts of the Sverdlovskiy Region
had been complied in May 2000. Ms T., Ms O. and Ms Ye. did not appear
on the 2000 lists.
24. On 8 February 2006 the Presidium of the Supreme Court, acting on
supervisory review, quashed the appeal judgment, finding that the
applicant had not been notified of the date and time of the appeal
hearing. It remitted the case to the Supreme Court for fresh
examination on appeal.
25. On 31 July 2006 the Supreme Court upheld the conviction on
appeal. It held, in particular, that the lay judges Ms T. and Ms O.
had been appointed in 1993 and that their term of office had been
extended by presidential decrees. It concluded that the court's
composition had been lawful. The applicant was represented by two
lawyers of his choice.
26. The documents submitted by the Government show that on 25 March
1999 the Sverdlovskiy Regional Legislature selected 551 lay judges to
be assigned to the Sverdlovskiy Regional Court. The list mentioned Ms
Ye., but not Ms T. or Ms O. By decisions of 18 and 25 May 2000 the
Sverdlovskiy Regional Legislature determined the number of lay judges
to be selected for each district court. No actual selection of lay
judges was made.
D. The conditions of the applicant's detention in remand centre
no. IZ-66/1 in Yekaterinburg
27. From 25 November 1999 to 18 November 2003 the applicant was held
in remand centre no. IZ-66/1 in Yekaterinburg. On 18 November 2003 he
was transferred to a correctional colony in the Vologda Region.
1. The Government's description of the conditions of the applicant's
detention
28. According to a certificate of 18 August 2008 issued by the remand
centre management and produced by the Government, until July 2002 the
applicant was held in communal cells. It was not possible to establish
the number of inmates in each cell, as the remand centre registers for
that period had been destroyed on expiry of the statutory storage
time-limit. From 6 July 2002 to 18 November 2003 the applicant was
held in solitary cells. Cell no. 210 measured 6 sq. m, cell no. 32
measured 4.5 sq. m, cell no. 1 measured 4 sq. m and cell no. 10
measured 7 sq. m.
29. The Government submitted, relying on certificates dated 18 August
2008 from the remand centre management, that all the cells were
naturally illuminated and ventilated through the windows. The windows
in all the cells were glazed. They had no blinds or other screens
preventing the access of natural light. Moreover, all the cells were
fitted with fluorescent lamps which functioned during the day and at
night. The cells were equipped with central heating and the average
temperature inside was above 20 C in winter and above 18 C in summer.
30. It follows from the same certificates that all the cells had
toilet facilities which were not separated from the living area by a
partition as "there was no such requirement under [domestic law]". It
was, however, possible to screen the toilet facilities off by a
curtain. The dining table and the beds were situated at least two
metres away from the toilet facilities. There were no insects or
rodents in the remand centre, as all the cells were disinfected every
month. The applicant was allowed to take a shower once a week and was
provided at that time with clean bedding. He was also supplied with
boiled drinking water and wholesome hot food three times a day. He had
an hour-long daily walk. Occasionally the duration of the daily walk
was shortened to thirty minutes. In reply to the applicant's
complaints, the warders responsible for that omission had been
reprimanded. Pursuant to an order by the governor of the remand centre
the applicant, who was considered dangerous, was handcuffed when taken
to the exercise yard.
31. In addition to the certificates of 18 August 2008 the Government
also produced certain documents dating from the period of the
applicant's detention in remand centre no. IZ-66/1 in support of their
description of the conditions of the applicant's detention. Hence,
they submitted a letter of 16 October 2002 addressed to a deputy
prosecutor of the Sverdlovskiy Region in which the chief sanitary
inspector of penitentiary institutions stated that the applicant was
currently held in cell no. 32. The cell measured 6.5 sq. m, was
illuminated artificially by fluorescent lamps and was equipped with
central heating and sewerage facilities. The average temperature was
18 to 20 C and the humidity was "subjectively normal". The cell was
equipped with a bunk and the applicant was provided with bedding. The
inspector added that the applicant had been previously held in cell
no. 210, which measured 8.8 sq. m and possessed the same
characteristics.
32. The Government also submitted a decision of 1 November 2002 by
the governor of the remand centre ordering that the applicant be
handcuffed every time he was let out of his cell, including when he
was taken to the visitors' room, the exercise yard or the shower room.
He noted that the applicant had been sentenced to life imprisonment
and had been registered as a person liable to escape, attack the
warders and take hostages. Accordingly, his handcuffing was necessary
to protect the warders and escorting officers.
33. According to numerous written statements from the warders,
produced by the Government, the conditions of the applicant's
detention were satisfactory. He was provided with sufficient food
three times a day. His cells were clean, warm and dry. One of the
warders, Mr I., stated that the applicant's cell was one of the best
in the remand centre. He continued:
"One day in December 2002 [the applicant] asked for a piece of
material that he might use to insulate his window. The window was not
glazed and it was covered by a blanket. In principle, that had no
impact on the temperature in cell no. 10 where [the applicant] was
held. It was very warm in the cell... [the applicant] was given a
piece of polythene...
[The applicant] always wears handcuffs on the way to the exercise
yard, but in the yard the handcuffs are removed..."
34. Finally, without relying on any documents, the Government
submitted that one of the solitary cells in which the applicant was
held, cell no. 10, measured 5.2 sq. m. The windows in the remand
centre were not covered with blinds, these having been removed before
25 December 2002. The toilet facilities were equipped with a flush
system and were separated from the living area by a partition.
2. The applicant's description of the conditions of his detention
35. From 25 November 1999 to 6 July 2002 the applicant was held in
various cells in buildings nos. 2 and 3 in remand centre no. IZ-66/1.
Each cell accommodated from twenty-five to thirty-five inmates. All
the cells were overcrowded.
36. On 6 July 2002 the applicant was placed in solitary cell no. 210.
The cell measured 3.2 sq. m. It had concrete walls and floor. The
window was covered with a metal screen with eight ventilation holes.
The toilet was not separated from the living area. There was no hot
running water in the cell.
37. On 25 September 2002 the applicant was transferred to solitary
cell no. 32, post 13, in the basement, where he remained until 14
October 2002. All his personal belongings, including warm clothes,
were taken away from him and he was given dirty prison overalls. The
cell was 1.8 metres in width and 4.5 metres in length. The walls were
covered with mould, water was dripping from the ceiling and the floor
was dirty with mud. There was no access to natural light or fresh air.
There was no hot running water in the cell. The applicant, who was ill
with arthritis, suffered as a result of the cold and the damp.
38. The applicant submitted photographs of cell no. 32 confirming his
description. The photographs show bare concrete walls, floor and
ceiling, all with damp patches on them. The cell is equipped with a
floor-level toilet with a rusty water pipe with a tap in place of a
flush system. There is also a rusty sink alongside, with its outlet
pipe leading to the toilet outlet. The toilet facilities are not
separated from the living area. Other photographs show two rusty
two-tier metal beds, one of them covered with a dirty mattress, and a
small metal shelf used as a dining table. There are two small
ventilation outlets immediately under the ceiling. There is apparently
no window.
39. One of the photographs shows a door vent about ten centimetres
wide. According to the applicant, the food was handed to him through
that vent. The food parcels from his wife that could not pass through
the vent were not given to him.
40. From 14 to 22 October 2002 the applicant stayed in solitary cell
no. 1, post 31. It was stifling inside the cell as it had no window or
ventilation device.
41. On 22 October 2002 the applicant was transferred to solitary cell
no. 10, post 31, in the basement, where he remained until 18 November
2003. The cell measured 1.7 metres in width and 2 metres in length,
that is, 3.4 sq. m. The dimensions of the window were 50 centimetres
by 50 centimetres. It was covered with four metal grilles placed
behind one another and blocking access to natural light. The window
had no glazing and it was extremely cold in the cell during the
winter. At the applicant's request the warders gave him a piece of
polythene to insulate the window. A certificate issued by a private
meteorological company indicates that the outside temperature in
October, November and December 2002 ranged from 9 C to - 30 C.
42. The applicant submitted photographs of cell no. 10 confirming his
description. The concrete walls of the cell are indeed covered with
damp patches. There is no lavatory bowl; instead, there is a hole in
the floor at the corner of the cell. There is no sign of a flush or
other washout system. The toilet is not separated from the living
area. Next to the toilet, there is a rusty sink and a small dining
table. A two-tier metal bed is placed along the opposite wall. The
only window is an aperture in a thick concrete wall with several metal
bars placed behind one another.
43. Finally, according to the applicant, he was handcuffed every time
he was let out of his cell and taken to the exercise yard. Given that
on some days the air temperature was below zero, the metal handcuffs
hurt his hands. His daily outdoor exercise was on many occasions
curtailed to half an hour instead of the one hour prescribed by law.
3. The applicant's complaints about the conditions of his detention
44. The applicant submitted copies of his numerous complaints to the
supervising prosecutor, together with the replies he received. Thus,
on 27 and 30 September, 1, 4, 7, 8, and 11 October 2002 the applicant
and his counsel complained to the supervising prosecutor about the
appalling conditions of the applicant's detention in cells nos. 210
and 32. In particular, the applicant complained that the cells were
cold, dark and humid, and that his personal belongings had been taken
away from him. In the complaint dated 8 October 2002 the applicant
also alleged that his daily outdoor exercise had been shortened to
half an hour and that he was handcuffed while in the exercise yard.
45. On 30 September 2002 the governor of remand centre no. IZ-66/1
replied that the applicant's cell measured 4 sq. m and that all the
sanitary norms were met.
46. By letter of 30 October 2002 the supervising prosecutor replied
that the applicant's conditions of detention were satisfactory and met
the established norms. In particular, cell no. 210 measured 8.8 sq. m,
while cell no. 32 measured 6.5 sq. m. The cells were illuminated
artificially. The temperature ranged between 18 and 20 degrees above
zero and the humidity was "subjectively normal". He conceded that the
applicant's personal belongings had been taken from him unlawfully,
but noted that they had been returned to him on 3 October 2002. He
also acknowledged that the applicant's handcuffing on his way to the
exercise yard had been unlawful and informed the applicant that the
warders had been disciplined.
47. In December and January 2002 the applicant and his counsel lodged
several more complaints with the supervising prosecutor. They alleged
that it was very cold in cell no. 10 as the window had no glazing.
They also complained about the insufficient outdoor exercise allowed
to the applicant and about his handcuffing while he was in the
exercise yard. They further claimed that the amount of food was
inadequate, that the applicant was not allowed to buy food in the
facility's shop and that food parcels from relatives were limited to
30 kg per month. They complained that on several occasions the
applicant had not been given any food during the entire day and that
sometimes the warders withheld food parcels brought by the applicant's
wife. Lastly, the applicant alleged that his personal television set
had been taken away from him.
48. On 16 January 2003 the governor of detention facility no. IZ-66/1
replied that the applicant's conditions of detention were
satisfactory.
49. In reply to further complaints by the applicant, the supervising
prosecutor acknowledged on 20 January 2003 that the duration of his
daily outdoor exercise had been unlawfully restricted. However, he
considered that it was necessary to handcuff the applicant when he was
taken to the exercise yard, in order to protect the escorting
officers. He also informed the applicant that owing to staff shortages
it was not possible to provide him with hot food every day.
50. On 5 May 2003 the applicant complained to the supervising
prosecutor that it was stifling inside his cell and that it was
swarming with rats and mice. He further alleged that the toilet was
not separated from the living area and that when using the toilet he
was in full view of the warders, many of whom were women. It appears
that the complaint remained without reply.
51. On 15 September 2003 counsel for the applicant complained to the
supervising prosecutor that on 11 September 2003 a piece of polythene
which he had been using to insulate the window had been taken away
from him and that it was cold in his cell because the window had no
glazing. The prosecutor of the Sverdlovskiy Region requested an
explanation from the head of the penitentiary department of the
Svderdlovskiy Region. In his letter of 21 October 2003 the head of the
penitentiary department stated that the windows in the remand centre
were currently being glazed, and that therefore the inmates were not
provided with polythene.
E. Medical assistance
52. In April 2001 the applicant was diagnosed with arthritis.
53. On 18 and 20 April 2001 he was examined by the doctor of remand
centre no. IZ-66/1, who prescribed anti-inflammatory treatment for
arthritis.
54. On 26 April 2001 the applicant was taken to prison hospital IK-2
in Yekaterinburg (ОБ при ФБУ ИК-2) for an examination. He was
diagnosed with arthropathy (a joint disease) of the knee, ankle and
wrist joints. On 8 May 2001 he was discharged.
55. From 23 October to 8 November and from 4 to 6 December 2001 the
applicant underwent further examinations in prison hospital IK-2. He
was diagnosed with infectious allergic polyarthritis.
56. On 8 and 21 January 2002 the applicant complained to the remand
centre doctor of pain, swelling and stiffness in the joints of his
upper and lower limbs. The doctor confirmed the previous diagnosis and
prescribed anti-inflammatory pills for arthritis.
57. In May 2002 the applicant was examined by the remand centre
doctor, who prescribed intra-muscular injections for ten days. The
medical record states that ten injections were administered between
21 May and 12 June 2002.
58. On 28 August 2002 the applicant again complained of pain and
swelling in his arm, elbow, finger, knee and ankle joints. The remand
centre doctor noted that the applicant's disease was "long-standing
and persistent" and referred him for examination to the prison
hospital.
59. On 12 September 2002 the applicant was admitted to prison
hospital IK-2, where he remained until 17 September 2002. He was
diagnosed with rheumatoid arthritis and slow-progressing seronegative
polyarthritis. The doctors recommended that the applicant stay away
from cold and damp places, be examined by a rheumatologist and follow
in-patient treatment.
60. On 5 November 2002 the applicant was examined by Dr L., a
rheumatologist from the Central Town Hospital. She recommended a
high-calorie diet and avoidance of exposure to cold. She noted that it
was unacceptable to restrict the applicant's food intake. She also
prescribed treatment. In particular, she recommended that the
applicant should take anti-inflammatory pills and apply ointments on a
continuous basis and should follow a one-month course of
hepatoprotective treatment. Regular blood counts and X-ray testing
should be performed. It was, however, premature to prescribe any
disease-modifying drugs (базисная терапия) or hormone therapy. She
concluded that further medical tests and constant medical supervision
were necessary.
61. According to the applicant, he did not receive any treatment
except analgesics (painkillers) and several injections because the
medical unit at the remand centre did not have the necessary
medication.
62. In reply to the complaints of insufficient medical assistance,
the governor of remand centre no. IZ-66/1 stated in writing on 16
December 2002 that the applicant did not need in-patient treatment. As
the applicant did not suffer from any serious diseases, his wife was
not allowed to send him food parcels exceeding 30 kg per month.
63. On the same day the applicant was examined by doctors from the
medical department of the Ministry of Justice. They noted in the
medical records that the applicant's health was satisfactory and that
he was receiving vitamins. The doctors also noted that further
examinations in the prison hospital were necessary.
64. On 17 December 2002 a deputy head of the medical department of
the Ministry of Justice informed the applicant's wife that the medical
department had conducted an inquiry and established that the applicant
was receiving sufficient and appropriate treatment for his disease.
65. On 8 January 2003 the applicant's wife complained to the medical
department of the Ministry of Justice that the applicant was not
receiving any medicine except painkillers. As a result of the
insufficient treatment provided, his disease had progressed.
66. On 10 January 2003 a deputy head of the medical department of the
Ministry of Justice replied that the applicant's state of health was
satisfactory.
67. In April 2003 the applicant underwent an X-ray examination.
68. On 27 May 2003 the applicant was for a second time examined by
the rheumatologist Dr L. The applicant complained of persistent pains
in his joints. Dr L. noted stiffness and swelling of certain joints
and limited movement of the right elbow joint and the left wrist
joint. She further observed that her previous recommendations had not
been followed and issued the same recommendations and prescriptions as
before. She further prescribed local hormone injections once every ten
to fourteen days until the inflammation in the joints had lessened.
Finally, she recommended that blood and urine tests should be
performed every month.
69. On an unspecified date (the date indicated in the medical records
is unreadable) the applicant was examined by the remand centre doctor.
He complained of weakness, loss of weight and aggravation of the pain
in his joints. The doctor noted in the medical records that the
applicant refused to take anti-inflammatory pills and insisted that he
needed intra-articular injections. The doctor recommended that the
applicant be taken to the prison hospital for an examination.
70. From 10 to 17 June and from 6 to 17 October 2003 the applicant
underwent an examination and followed treatment in prison hospital
IK-2.
71. In reply to further complaints of inadequate treatment lodged by
the applicant's wife, the head of the medical department of the
Ministry of Justice stated on 8 October 2003 that the applicant's
state of health was satisfactory. He noted that the rheumatologist had
recommended that the applicant take anti-inflammatory medicines, apply
ointments and receive intra-articular injections. The applicant had
refused to take the anti-inflammatory medicines prescribed to him.
Intra-articular injections were not possible because there were no
medical officers in the detention facility trained in administering
them. The head of the medical department of the Ministry of Justice
concluded that the applicant was receiving adequate and sufficient
treatment.
72. On 10 October 2003 Dr K., a rheumatologist from Yekaterinburg
Town Clinical Hospital no. 40, examined the applicant's medical
records and concluded that he was suffering from rheumatoid arthritis.
The report continued as follows:
"[Rheumatoid arthritis] is a serious disease causing marked pain in
the joints and muscles and restricting the function of the affected
joint. It is progressive and incurable. The disease requires constant
anti-inflammatory treatment to lessen the pain and inflammation in the
joints and muscles. It also requires specific treatment with
disease-modifying drugs to slow down the process of destruction of the
joints. [The applicant] has not received any disease-modifying drugs.
Owing to the destruction of the joint structures and muscle atrophy,
this disease leads to disability within 5 to 10 years of its onset,
depending on the rate of progression.
In cases where other internal organs are affected by the disease (this
is possible in the absence of adequate treatment) it may progress more
rapidly.
The analysis of the submitted materials reveals that at present [the
applicant] is affected by an active inflammation process which has
resulted in loss of function in the joints.
I recommend an examination ... which is necessary in order to
prescribe adequate treatment.
[The applicant] requires wholesome food rich in protein and vitamins.
Damp and cold places are strongly contraindicated."
73. On an unspecified date the applicant lodged a civil claim against
remand centre no. IZ-66/1, complaining about the allegedly
insufficient medical assistance afforded to him.
74. On 9 December 2003 the Verkh-Isetskiy District Court of
Yekaterinburg noted that the applicant suffered from arthritis. The
management of the remand centre had an obligation to organise a
medical examination of the applicant in order to determine the gravity
of his medical condition. It had however failed to do so. Moreover,
given that arthritis was a serious disease requiring a high-calorie
diet, it had been unlawful to limit food parcels from relatives to
30 kg per month. However, the court rejected the applicant's claim,
finding that it was without substance as he was no longer being held
in remand centre no. IZ-66/1.
75. On 9 January 2004 the applicant was granted disability status.
F. The applicant's contact with his representative Ms Demeneva
76. The applicant appointed Ms Demeneva, a lawyer with the Urals
Centre of Constitutional and International Protection of Human Rights,
to represent him before the Supreme Court and the European Court. On
27 November 2002 Ms Demeneva applied to the President of the
Sverdlovskiy Regional Court for permission to visit the applicant. On
28 November 2002 her request was refused. No reasons for the refusal
were provided.
77. On 5 December 2002 Ms Demeneva for a second time asked the
President of the Sverdlovskiy Regional Court to issue her with a
visitor's permit. By letter of 11 December 2002 a judge of the
Sverdlovskiy Regional Court refused to admit Ms Demeneva as counsel
for the applicant. He noted that at that stage of the proceedings the
admission of counsel was within the competence of the Supreme Court.
78. In January 2003 Ms Demeneva lodged a new request for a visitor's
permit with the President of the Sverdlovskiy Regional Court. The
request indicated that Ms Demeneva was the applicant's representative
before the Court. It appears that the request was not examined.
79. On 28 April and 14 May 2003 the applicant wrote to the President
of the Sverdlovskiy Regional Court, informing him that he wanted to
meet Ms Demeneva in order to prepare an application to the European
Court of Human Rights. On an unspecified date in July 2003 the
Sverdlovskiy Regional Court issued Ms Demeneva with a visitor's
permit.
80. On 23, 25 and 30 July 2003 Ms Demeneva came to visit the
applicant. However, the management of remand centre no. IZ-66/1
refused to let her in. They did not give any reasons for the refusal.
81. In reply to Ms Demeneva's complaint, the penitentiary department
of the Sverdlovskiy Region informed her on 25 August 2003 that she had
not been appointed to represent the applicant in the criminal
proceedings and that her legal status was unclear. Therefore, she was
not allowed to visit the applicant.
82. By letter of 15 September 2003 a deputy President of the
Sverdlovskiy Regional Court informed the penitentiary department of
the Sverdlovskiy Region that the applicant's conviction had become
final and that the visitor's permit issued to Ms Demeneva was no
longer valid.
83. On 3 November 2003 the Sverdlovskiy regional prosecutor's office
informed Ms Demeneva that she had been denied access to the applicant
because she had not produced a judicial decision by which she had been
admitted to act as counsel for the applicant.
84. The applicant challenged the refusals before the Verkh-Isetskiy
District Court of Yekaterinburg. On 13 November 2003 the
Verkh-Isetskiy District Court found that Ms Demeneva had a power of
attorney authorising her to represent the applicant's interests before
the European Court of Human Rights and possessed a valid visitor's
permit issued by a competent court. It ordered the management of
detention facility no. IZ-66/1 to organise the applicant's meetings
with Ms Demeneva.
85. No meetings were organised. On 24 February 2004 the bailiffs'
service discontinued the enforcement proceedings, finding that it was
no longer possible to organise the meetings as the applicant had been
transferred to a correctional colony.
II. RELEVANT DOMESTIC LAW
A. Lay judges
1. The RSFSR Code of Criminal Procedure
86. The Code of Criminal Procedure of the Russian Soviet Federalist
Socialist Republic (Law of 27 October 1960, in force until 1 July 2002
- "the old CCrP") provided that criminal cases were tried at first
instance by a single judge or by a bench consisting of a professional
judge and two lay judges. In their judicial capacity lay judges
enjoyed the same rights as professional judges (Article 15).
2. The RSFSR Constitution of 1978 (as amended by Federal Law
no. 4061-1 of 9 December 1992)
87. By virtue of Article 164 of the RSFSR Constitution of 1978 (in
force until 12 December 1993, when the Constitution of the Russian
Federation was adopted), lay judges were elected during meetings of
citizens at their place of work or residence for a term of five years.
3. The RSFSR Judicial System Act
88. Under section 29 of the RSFSR Law of 8 July 1981 on the RSFSR
judicial system ("the RSFSR Judicial System Act") (the relevant
provisions remained in force until 10 January 2000, date of the
official publication of the Federal Law on lay judges at the federal
courts of general jurisdiction in the Russian Federation), lay judges
at the regional courts were to be elected by the Regional Congress of
People's Deputies for a term of five years.
4. The Constitution of the Russian Federation
89. On 12 December 1993 the Constitution of the Russian Federation
was adopted. It does not provide for any procedure for the selection
of lay judges.
90. Articles 83 and 84 of the Constitution list the powers of the
President. They do not mention any power to appoint lay judges or to
prolong their term of office.
91. Article 90 provides that the President may issue decrees and
orders. Decrees and orders of the President have binding force in the
entire territory of the Russian Federation. They may not be contrary
to the Constitution or federal laws.
92. Part 2 of the Russian Constitution contains provisions aimed at
preserving the continuity of the judiciary and other State bodies
during the transitional period. In particular, paragraph 6 establishes
that until the adoption of a federal law setting out the procedure for
the examination of cases by a jury, the previous procedure for
examination of that category of cases by the courts should be
preserved.
5. The presidential decree of 22 March 1995
93. On 22 March 1995 the acting President of Russia issued Decree
no. 299, which read as follows:
"Relying on Article 90 and paragraph 6 of Part 2 of the Constitution
of the Russian Federation, [I] order that:
1. The lay judges at the district (town) courts shall continue their
service until the adoption of the relevant federal law.
2. The executive authorities of the constituent elements of the
Russian Federation shall, if necessary, organise by-elections of lay
judges for the district (town) courts at general staff meetings,
general meetings and gatherings of citizens at their places of
residence."
94. On 21 March 1997 the Constitutional Court examined an application
by Mr Sh. who submitted, in particular, that the presidential decree
was incompatible with the Constitution. The Constitutional Court found
that it had no competence to verify the compatibility of presidential
decrees with the Constitution at citizens' request. It noted, however,
that the procedure for examination of criminal cases by a judicial
bench including lay judges was established by the old CCrP and the
RSFSR Judicial System Act. Those acts remained in force in accordance
with paragraph 6 of Part 2 of the Constitution. It was therefore
necessary to preserve the system of lay judges for the time being.
6. The Judicial System Act
95. On 1 January 1997 Federal Constitutional Law no. 1-FKZ on the
judicial system of the Russian Federation ("the Judicial System Act")
entered into force. By virtue of section 1 of the Act judicial
authority in the Russian Federation was vested exclusively in courts
comprising professional judges, jurors, lay judges and arbitration
judges appointed or elected in accordance with the procedure laid down
by federal law.
96. Section 8 of the Judicial System Act provided that individuals
could participate as jurors, lay judges and arbitration judges in the
administration of justice in accordance with the procedure established
by federal law.
97. Section 37 established that lay judges elected to serve in the
courts before 1 January 1997 should remain in office until the expiry
of the term of office for which they had been elected.
7. The presidential decree of 23 January 1997
98. On 23 January 1997 the President of the Russian Federation issued
Decree no. 41, which, in so far as relevant, read as follows:
"Having regard to the [fact] that the Federal Constitutional Law on
the judicial system of the Russian Federation has come into effect,
for the purpose of ensuring the activities of the courts of general
jurisdiction in the Russian Federation and for the judicial protection
of the rights of individuals, and relying on Article 90 of the
Constitution of the Russian Federation, [I] order that:
1. The lay judges at ... regional courts shall continue their service
until the adoption of the federal law on the procedure for appointment
(election) of lay judges."
99. On 10 October 2002 the Constitutional Court examined an
application by a Mr G., who claimed that the presidential decree was
incompatible with the Constitution. The Constitutional Court found
that, in accordance with Article 90 of the Constitution, presidential
decrees must not be contrary to the Constitution or federal laws. The
decree contested by Mr G. prolonged the term of office of lay judges
elected earlier. It did not establish any procedure for calling lay
judges to sit in particular criminal cases which would differ from the
procedure prescribed by federal law. In particular, it did not contain
any provisions which would allow lay judges to be called for service
on a regular basis and for periods surpassing two weeks per year. The
complaint was declared inadmissible.
8. The Lay Judges Act
100. On 10 January 2000 the Federal Law on lay judges at the federal
courts of general jurisdiction in the Russian Federation ("the Lay
Judges Act") came into force. Under section 1(2) of the Act, lay
judges were persons authorised to sit in civil and criminal cases as
non-professional judges.
101. Section 2 provided that lists of lay judges were to be compiled
for every district court by local self-government bodies; the lists
were subject to confirmation by the regional legislature. The
confirmed list was to be submitted to the relevant district court no
later than one month before the expiry of the term of office of the
lay judges on the previous list. The term of office of lay judges was
five years.
102. Section 6 determined the procedure for the selection of lay
judges at the regional courts. It provided that the President of the
regional court was to draw names at random from the overall list of
lay judges assigned to the district courts situated on the territory
of that region. The number of lay judges assigned to every
professional judge should be at least three times as many as the
number needed for a hearing. From the list of lay judges assigned to
him the professional judge was to select two lay judges by lot to sit
in a particular case.
103. Under the terms of section 9, lay judges could only be called
for service in a regional court once a year, for the entire duration
of the court proceedings in a particular case.
9. The Regulation on the appointment of lay judges
104. The Presidium of the Supreme Court of the Russian Federation
issued on 14 January 2000 a Regulation on the procedure for the
selection of lay judges. The Regulation provided that the President of
a district court should draw at random from the general list of lay
judges 156 names for each judge. The random selection could be made by
any method (for example by random computer selection, or by manual
selection of each fifth name for one judge, each seventh name for
another judge, etc.). The lay judges for a particular case were to be
drawn by lot by the judge to whom the case had been assigned. Each
court was obliged to keep records of all random selections and
drawings by lot.
105. The Regulation further referred to section 37 of the Judicial
System Act and section 2 of the lay Judges Act and provided that,
given that no lists of lay judges had been compiled by the date of the
entry into force of the Lay Judges Act, the acting lay judges should
remain in office until the submission of new lists of lay judges to
the courts.
10. The presidential decree of 25 January 2000
106. Under the decree of the acting President of Russia issued on
25 January 2000, lay judges serving in the courts of general
jurisdiction were authorised to remain in office until the courts
received the new lists of judges confirmed by the regional
legislatures.
107. On 21 December 2001 the Constitutional Court examined an
application by a Mr P., who submitted, in particular, that the
presidential decree was incompatible with the Constitution. The
Constitutional Court found that it had no competence to verify the
compatibility of presidential decrees with the Constitution at
citizens' request.
11. The Code of Criminal Procedure
108. On 1 July 2002 the Code of Criminal Procedure of the Russian
Federation (Law no. 174-FZ of 18 December 2001 - "the new CCrP")
entered into force. It abolished the system of lay judges as from 1
January 2004.
12. The presidential decree of 5 August 2002
109. On 5 August 2002 the President of the Russian Federation issued
Decree no. 855, by which, referring to the entry into force of the Lay
Judges Act, he declared his Decrees no. 299 of 22 March 1995, no. 41
of 23 January 1997 and no. 103 of 25 January 2000 to be no longer in
force.
B. Visits by counsel
110. The new CCrP provides that advocates authorised by a bar
association are admitted to act as counsel in criminal proceedings. At
the defendant's request the judge may admit a close relative or any
other person to act as counsel (Article 49). Counsel may visit the
suspect or the accused in private and in confidence. The frequency or
duration of the visits may not be limited (Articles 47 S: 4 (9) and 53
S: 1 (1)).
111. Federal Law no. 103-FZ of 15 July 1995 on the detention of
persons suspected or accused of criminal offences ("the Detention
Act") provides that a suspect or an accused is entitled to receive
visits from his counsel from the moment he or she is arrested. Visits
are conducted in private and in confidence. Their duration or
frequency may be limited only in those cases established by the Code
of Criminal Procedure. Counsel may visit a detainee on presentation of
his or her bar certificate and a mandate to represent the accused's
interests issued by the bar association (ордер юридической
консультации). It is prohibited to require any other documents. If a
non-advocate has been admitted to act as counsel, visits are permitted
on presentation of the relevant court decision and an identity card
(section 18).
III. RELEVANT INTERNATIONAL INSTRUMENTS
112. The Standard Minimum Rules for the Treatment of Prisoners,
adopted by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, held in Geneva in 1955, and
approved by the Economic and Social Council by its resolution 663 C
(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in
particular, as follows:
"10. All accommodation provided for the use of prisoners and in
particular all sleeping accommodation shall meet all requirements of
health, due regard being paid to climatic conditions and particularly
to cubic content of air, minimum floor space, lighting, heating and
ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read
or work by natural light, and shall be so constructed that they can
allow the entrance of fresh air whether or not there is artificial
ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to
read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every
prisoner to comply with the needs of nature when necessary and in a
clean and decent manner.
13. Adequate bathing and shower installations shall be provided so
that every prisoner may be enabled and required to have a bath or
shower, at a temperature suitable to the climate, as frequently as
necessary for general hygiene according to season and geographical
region, but at least once a week in a temperate climate.
14. All pans of an institution regularly used by prisoners shall be
properly maintained and kept scrupulously clean at all times.
...
15. Prisoners shall be required to keep their persons clean, and to
this end they shall be provided with water and with such toilet
articles as are necessary for health and cleanliness.
...
19. Every prisoner shall, in accordance with local or national
standards, be provided with a separate bed, and with separate and
sufficient bedding which shall be clean when issued, kept in good
order and changed often enough to ensure its cleanliness.
...
20. (1) Every prisoner shall be provided by the administration at the
usual hours with food of nutritional value adequate for health and
strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he
needs it.
...
21. (1) Every prisoner who is not employed in outdoor work shall have
at least one hour of suitable exercise in the open air daily if the
weather permits.
..."
113. The relevant extracts from the General Reports prepared by the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
"47. A satisfactory programme of activities (work, education, sport,
etc.) is of crucial importance for the well-being of prisoners. ...
[P]risoners cannot simply be left to languish for weeks, possibly
months, locked up in their cells, and this regardless of how good
material conditions might be within the cells. The CPT considers that
one should aim at ensuring that prisoners in remand establishments are
able to spend a reasonable part of the day (8 hours or more) outside
their cells, engaged in purposeful activity of a varied nature...
48. Specific mention should be made of outdoor exercise. The
requirement that prisoners be allowed at least one hour of exercise in
the open air every day is widely accepted as a basic safeguard ... It
is also axiomatic that outdoor exercise facilities should be
reasonably spacious...
49. Ready access to proper toilet facilities and the maintenance of
good standards of hygiene are essential components of a humane
environment."
Extracts from the 3rd General Report [CPT/Inf (93) 12]
"35. A prison's health care service should at least be able to
provide regular out-patient consultations and emergency treatment (of
course, in addition there may often be a hospital-type unit with
beds). ... Further, prison doctors should be able to call upon the
services of specialists.
...
Out-patient treatment should be supervised, as appropriate, by health
care staff; in many cases it is not sufficient for the provision of
follow-up care to depend upon the initiative being taken by the
prisoner.
36. The direct support of a fully-equipped hospital service should
be available, in either a civil or prison hospital.
...
37. Whenever prisoners need to be hospitalised or examined by a
specialist in a hospital, they should be transported with the
promptness and in the manner required by their state of health.
38. A prison health care service should be able to provide medical
treatment and nursing care, as well as appropriate diets,
physiotherapy, rehabilitation or any other necessary special facility,
in conditions comparable to those enjoyed by patients in the outside
community. Provision in terms of medical, nursing and technical staff,
as well as premises, installations and equipment, should be geared
accordingly.
There should be appropriate supervision of the pharmacy and of the
distribution of medicines. Further, the preparation of medicines
should always be entrusted to qualified staff (pharmacist/nurse,
etc.).
39. A medical file should be compiled for each patient, containing
diagnostic information as well as an ongoing record of the patient's
evolution and of any special examinations he has undergone. In the
event of a transfer, the file should be forwarded to the doctors in
the receiving establishment.
Further, daily registers should be kept by health care teams, in
which particular incidents relating to the patients should be
mentioned. Such registers are useful in that they provide an overall
view of the health care situation in the prison, at the same time as
highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that
doctors and nursing staff are able to meet regularly and to form a
working team under the authority of a senior doctor in charge of the
service."
Extract from the 11th General Report [CPT/Inf (2001) 16]
"30. The CPT frequently encounters devices, such as metal shutters,
slats, or plates fitted to cell windows, which deprive prisoners of
access to natural light and prevent fresh air from entering the
accommodation. They are a particularly common feature of
establishments holding pre-trial prisoners. The CPT fully accepts that
specific security measures designed to prevent the risk of collusion
and/or criminal activities may well be required in respect of certain
prisoners. However, the imposition of measures of this kind should be
the exception rather than the rule. This implies that the relevant
authorities must examine the case of each prisoner in order to
ascertain whether specific security measures are really justified in
his/her case. Further, even when such measures are required, they
should never involve depriving the prisoners concerned of natural
light and fresh air. The latter are basic elements of life which every
prisoner is entitled to enjoy; moreover, the absence of these elements
generates conditions favourable to the spread of diseases and in
particular tuberculosis.
The CPT recognises that the delivery of decent living conditions in
penitentiary establishments can be very costly and improvements are
hampered in many countries by lack of funds. However, removing devices
blocking the windows of prisoner accommodation (and fitting, in those
exceptional cases where this is necessary, alternative security
devices of an appropriate design) should not involve considerable
investment and, at the same time, would be of great benefit for all
concerned."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE
APPLICANT'S CONDITIONS OF DETENTION
114. The applicant complained that the conditions of his detention at
the Kirovskiy District police station in Yekaterinburg, in the
temporary detention facilities in Yekaterinburg and Ozersk and in
remand centre no. IZ-66/1 in Yekaterinburg had been in breach of
Article 3 of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
A. Admissibility
115. The Court observes that from 15 October to 25 November 1999 the
applicant was held at the police station and in the temporary
detention facilities, where the cells were allegedly small and cold
and were not equipped with sleeping facilities, where he was deprived
of food and where his access to the toilet was restricted. He was then
transferred to remand centre no. IZ-66/1, where he was held in the
allegedly overcrowded communal cells until 6 July 2002. From 6 July
2002 to 18 November 2003 the applicant was held in solitary cells in
the remand centre which were allegedly cold, dark, damp and dirty.
Having regard to the difference in the nature of the applicant's
allegations in respect of the local police station, the temporary
detention facilities, the communal cells of the remand centre and the
solitary cells of the remand centre, the Court does not find any
special circumstances which would enable it to construe the entire
period of the applicant's detention as a "continuing situation" (see,
for similar reasoning, Maltabar and Maltabar v. Russia, no. 6954/02,
S:S: 82-84, 29 January 2009).
116. Given that the present application was lodged on 2 December
2003, the complaints relating to:
(a) the applicant's detention at the local police station and in the
temporary detention facilities from 15 October to 25 November 1999,
and
(b) his detention in the communal cells of remand centre no. IZ-66/1
from 25 November 1999 to 6 July 2002
were introduced out of time and must be rejected in accordance with
Article 35 S:S: 1 and 4 of the Convention.
117. As to the complaint relating to his detention in the solitary
cells of remand centre no. IZ-66/1 from 6 July 2002 to 18 November
2003, the Court notes that it is not manifestly ill-founded within the
meaning of Article 35 S: 3 of the Convention. It further notes that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
118. The applicant challenged the Government's description of
conditions in remand centre no. IZ-66/1, summarised in paragraphs 28
to 34 above, as factually untrue. The certificates prepared by the
remand centre management in 2008 could not be considered as credible.
The applicant insisted that his description of the cells had been
accurate and referred to the documents submitted by him in evidence.
The conditions of his detention had been inhuman and therefore
incompatible with Article 3. The applicant further argued that his
frequent handcuffing had caused him unusual and severe suffering
because his hands were affected by rheumatoid arthritis.
119. The Government submitted that the conditions of the applicant's
detention had been satisfactory and in compliance with the
requirements of Article 3. The cells had been light and warm. There
had been glazed windows, artificial illumination and central heating
in all cells. The applicant had been provided with an individual bunk
and bedding at all times. He had been supplied with sufficient food
and drinking water. The sanitary and hygienic norms had been met. The
applicant had been able to exercise daily. The Government conceded
that occasionally the duration of his daily walk had been shortened
but stated that the officials responsible for that omission had been
disciplined. The applicant's handcuffing on the way to the exercise
yard had been lawful and justified because he had been registered as a
person liable to escape or attack the escorting officers. In the
exercise yard the handcuffs had been removed.
2. The Court's assessment
120. The Court reiterates that Article 3 of the Convention enshrines
one of the most fundamental values of democratic society. It prohibits
in absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see Labita v. Italy [GC], no. 26772/95, S: 119, ECHR
2000-IV). However, to fall under Article 3 of the Convention,
ill-treatment must attain a minimum level of severity. The assessment
of this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and state
of health of the victim (see Valaшinas v. Lithuania, no. 44558/98,
S:S: 100-101, ECHR 2001-VIII).
121. The Court has consistently stressed that the suffering and
humiliation involved must in any event go beyond the inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Under this provision the State
must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured (see
Valaшinas, cited above, S: 102, and Kuda v. Poland [GC], no. 30210/96,
S: 94, ECHR 2000-XI). When assessing conditions of detention, account
must be taken of their cumulative effects as well as the applicant's
specific allegations (see Dougoz v. Greece, no. 40907/98, S: 46, ECHR
2001-II). The duration of the detention is also a relevant factor.
122. The Court notes that the present case is different from many
Russian cases where a violation of Article 3 of the Convention was
found on account of the lack of personal space afforded to detainees
(see, for example, Lind v. Russia, no. 25664/05, S: 59, 6 December
2007; Kantyrev v. Russia, no. 37213/02, S:S: 50-51, 21 June 2007;
Andrey Frolov v. Russia, no. 205/02, S:S: 47-49, 29 March 2007;
Mamedova v. Russia, no. 7064/05, S:S: 61-67, 1 June 2006; Mayzit v.
Russia, no. 63378/00, S: 40, 20 January 2005; and Labzov v. Russia,
no. 62208/00, S: 44, 16 June 2005). The applicant in the present case,
who was held in solitary cells, did not complain of a lack of personal
space. Instead, he complained of other aspects of the physical
conditions of detention, including the coldness of his cell,
insufficient access to daylight and poor sanitary conditions. The
Court has previously found that such factors as access to natural
light or air, adequacy of heating arrangements, compliance with basic
sanitary requirements, the opportunity to use the toilet in private
and the availability of ventilation are relevant to the assessment of
whether the acceptable threshold of suffering or degradation has been
exceeded (see, for example, Vlasov v. Russia, no. 78146/01, S: 84, 12
June 2008; Babushkin v. Russia, no. 67253/01, S: 44, 18 October 2007;
Trepashkin v. Russia, no. 36898/03, S: 94, 19 July 2007; and Peers v.
Greece, no. 28524/95, S:S: 70-72, ECHR 2001-III). The Court will have
to verify whether the physical conditions of the applicant's detention
can be regarded as compatible with Article 3 of the Convention.
123. The parties have disputed many aspects of the conditions of the
applicant's detention in the solitary cells of remand centre
no. IZ-66/1 in Yekaterinburg. The Court is accordingly faced with the
task of establishing the facts on which the parties disagree. It
reiterates in this respect that allegations of treatment contrary to
Article 3 must be supported by appropriate evidence. In assessing
evidence, the Court has generally applied the standard of proof
"beyond reasonable doubt" (see Ireland v. the United Kingdom, 18
January 1978, S: 161, Series A no. 25). However, Convention
proceedings, such as the present application, do not in all cases lend
themselves to a rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that
allegation) because in certain instances the respondent Government
alone have access to information capable of corroborating or refuting
these allegations. A failure on a Government's part to submit such
information without a satisfactory explanation may give rise to the
drawing of inferences as to the well-foundedness of the applicant's
allegations (see, among other authorities, Kokoshkina v. Russia, no.
2052/08, S: 59, 28 May 2009, and Ahmet zkan and Others v. Turkey,
no. 21689/93, S: 426, 6 April 2004).
124. The Court observes at the outset that the applicant described
the conditions of his detention in detail. He submitted colour
photographs of his cells confirming his description, as well as
letters from remand centre officials and the supervising prosecutor
which corroborate some of his allegations. The Government, by
contrast, confined their supporting evidence to numerous certificates
from the remand centre management issued on 18 August 2008, that is,
long after the applicant had left the remand centre. They have not
submitted any source materials on the basis of which the assertions of
comfortable conditions of detention contained in those certificates
could be verified. The Court would reiterate that on several previous
occasions it has declined to accept the validity of similar
certificates on the ground that they could not be viewed as
sufficiently reliable given the lapse of time involved and the absence
of any supporting documentary evidence (see Kokoshkina, cited above,
S: 60; Sudarkov v. Russia, no. 3130/03, S: 43, 10 July 2008; and
Belashev v. Russia, no. 28617/03, S: 52, 13 November 2007). The
certificates are therefore of little evidentiary value for the Court.
The few documents dating from the period of the applicant's detention
in the remand centre produced by the Government seem to conflict, at
least in part, with their description of the conditions of detention
and lend some support to the applicant's allegations. The Court will
now examine the conditions of the applicant's detention in detail.
125. Firstly, the applicant claimed that it had been very cold in one
of his cells, cell no. 10, where he was held from 22 October 2002 to
18 November 2003, as the window there had no glazing. Although the
Government disputed that allegation, it is confirmed by the testimony
of one of the warders, who conceded that the window was not glazed and
was insulated by a piece of polythene (see paragraph 33 above), and by
the letter from the regional prosecutor which stated that the windows
in the remand centre were glazed only in September 2003 (see paragraph
51 above). The Court therefore considers it established beyond
reasonable doubt that for almost a year the applicant was held in a
cell which had an unglazed window. It has already found it
unacceptable that anyone should be detained in conditions involving a
lack of adequate protection against extreme temperatures (see Mathew
v. the Netherlands, no. 24919/03, S: 214, ECHR 2005-IX). Due to the
lack of glazing the applicant in the present case was for long periods
of time exposed to extremely low temperatures, falling in the winter
months to - 30 C (see paragraph 41 above). This factor undeniably
caused him hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention. His situation was exacerbated still
further by the fact that he suffered from arthritis and staying in
cold places had been specifically and repeatedly forbidden to him by
doctors (see paragraphs 59, 60 and 72 above). The Court considers that
in such circumstances the lengthy exposure of the applicant to low
temperatures amounted in itself to inhuman treatment.
126. In view of the above conclusion, it would be unnecessary to
assess other aspects of the physical conditions of the applicant's
detention. However, the Court cannot but state that it is appalled by
the photographs showing the interior of the applicant's cells. The
cells are evidently in a deplorable state of repair and cleanliness.
The concrete walls, the ceiling and the floor are damaged by dampness.
The toilet facilities are decrepit and filthy and are not separated
from the living area. There is no lavatory bowl or flush system; the
washbasin is eaten away with rust. The metal beds are also rusty and
dilapidated, while the bedding is worn out and dirty (see paragraphs
38 and 42 above). The Court considers that such conditions can only be
described as degrading and unfit for decent habitation.
127. Further, the Court observes that for more than a year the
applicant had limited access to natural light. Indeed, the Government
acknowledged that the blinds were removed only in December 2002, which
confirms the applicant's allegation that the window in cell no. 210
where he was held from 6 July to 25 September 2002 was covered with a
metal screen (see paragraphs 34 and 36 above). The photographs show
that cell no. 32, where the applicant was held from 25 September to 14
October 2002, had no window, while the window in cell no. 10 where the
applicant was held from 22 October 2002 to 18 November 2003 was
blinded by several layers of thick metal grills which significantly
reduced the amount of daylight that could penetrate into the cell (see
paragraphs 38, 41 and 42 above). The Court therefore finds it
established that the window arrangements in the remand centre allowed
little or no access to natural light. The access to fresh air was
equally limited in certain cells, especially in the two cells, nos. 1
and 32, that had no windows. The Government did not produce any
reliable evidence confirming their claim that those cells were
equipped with mechanical ventilation. It therefore appears that for at
least a month the applicant was kept in cells which were either poorly
ventilated or not ventilated at all. The Court notes that the
applicant was confined to his insufficiently lit and ventilated cells
for the entire day, except for one hour of outdoor exercise. On many
occasions the duration of the outdoor exercise was unlawfully
shortened to half an hour, as the Government admitted (see paragraph
30 above). Accordingly, for a considerable part of each day the
applicant was deprived of daylight and in certain cells of fresh air,
which undoubtedly contributed to the distress that he felt owing to
the other factors described above (see, for similar reasoning, Vlasov,
cited above, S:S: 83 and 84).
128. Finally, the Court notes that hot food was served irregularly
owing to staff shortages (see paragraph 49 above). It accepts the
applicant's argument that this circumstance aggravated even further
the appalling conditions of his detention.
129. Having regard to the cumulative effect of the factors described
above, the Court finds that the conditions in which the applicant was
held diminished his human dignity and aroused in him feelings of
anguish and inferiority capable of humiliating and debasing him. In
view of that finding, there is no need for the Court to establish the
truthfulness or otherwise of the applicant's allegations concerning
other aspects of his detention such as the presence of parasites in
the cells, his handcuffing in the exercise yard, the restrictions on
food parcels from relatives or the removal of a television set. The
factors analysed in paragraphs 125 to 128 above are sufficient to
enable the Court to conclude that the conditions of the applicant's
detention in remand centre no. IZ-66/1 in Yekaterinburg amounted to
inhuman and degrading treatment.
130. There has therefore been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF
INSUFFICIENT MEDICAL ASSISTANCE
A. Submissions by the parties
131. The applicant complained under Article 3 of the Convention of
the allegedly inadequate medical assistance afforded to him in remand
centre no. IZ-66/1 in Yekaterinburg. In his opinion the medical
records showed that he had not received any regular treatment for his
rheumatoid polyarthritis. The recommendations made by a rheumatologist
had not been complied with. An independent medical expert had
confirmed that the treatment had been inadequate, in particular
because the applicant had not been prescribed any disease-modifying
drugs (see paragraph 72 above). As a result of the insufficient
medical assistance afforded to him the applicant had suffered from
severe pain and his disease had progressed.
132. The Government submitted that the applicant had received
adequate and timely treatment. He had undergone several examinations
in prison hospital IK-2. He had received the medication prescribed to
him. His state of health had always been satisfactory.
B. The Court's assessment
1. Admissibility
133. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 S: 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
134. The Court reiterates that although Article 3 of the Convention
cannot be construed as laying down a general obligation to release
detainees on health grounds, it nonetheless imposes an obligation on
the State to protect the physical well-being of persons deprived of
their liberty by, among other things, providing them with the
requisite medical assistance (see Khudobin v. Russia, no. 59696/00, S:
93, ECHR 2006-XII (extracts); Mouisel v. France, no. 67263/01, S: 40,
ECHR 2002-IX; and Kuda, cited above, S: 94). The Court has held on
many occasions that the lack of appropriate medical care may amount to
treatment contrary to Article 3 (see, for example, Wenerski v. Poland,
no. 44369/02, S:S: 56 to 65, 20 January 2009; Popov v. Russia,
no. 26853/04, S:S: 210 to 213 and 231 to 237, 13 July 2006; and
Nevmerzhitsky v. Ukraine, no. 54825/00, S:S: 100-106, ECHR 2005-II
(extracts)).
135. Turning to the present case, the Court notes that it is
undisputed between the parties that the applicant has suffered from
rheumatoid polyarthritis since April 2001. What the parties disagree
on, and what appears to lie at the core of the case at hand, is the
adequacy or otherwise of the treatment afforded to the applicant. The
Government claimed that the applicant had been provided with the
necessary care, whereas the applicant contested the Government's
arguments. In these circumstances, the Court finds it necessary to
establish whether the applicant was in fact denied adequate medical
assistance and, as a consequence, was caused suffering of a level
going beyond the threshold set by Article 3.
136. The applicant's medical records indicate that he was regularly
examined by the remand centre doctor and was on six occasions taken to
IK-2 prison hospital for comprehensive examinations. He was also seen
twice by Dr L., a specialist in joint diseases, who set up a course of
treatment for him. The applicant, however, argued that the doctors'
recommendations concerning anti-inflammatory pills and hormone
injections had not been complied with and that in any event the
prescribed course of treatment had been inadequate as it did not
include any treatment with disease-modifying drugs.
137. The Court will firstly examine the applicant's allegation
concerning treatment with disease-modifying drugs. Relying on the
opinion of Dr K. (see paragraph 72 above), the applicant claimed that
disease-modifying drugs were necessary to slow down the destruction of
the joints and that as a result of the failure to administer such
drugs his disease had quickly progressed to disability. The Court is
faced with conflicting medical evidence as regards the appropriateness
of such treatment in the applicant's situation. Thus, Dr K. stated in
her report that disease-modifying drugs were an essential part of
anti-arthritis treatment, while the rheumatologist Dr L., who examined
the applicant twice, decided that they were not required in his case
(see paragraph 60 above). The Court is inclined to endorse the opinion
of Dr L. because she had the benefit of having examined the applicant
in person while Dr K. never saw the applicant and gave her opinion,
which is couched in general terms, on the basis of the medical records
alone. Moreover, there is nothing in Dr K.'s report to give support to
the applicant's allegation that there was a causal link between the
absence of treatment with disease-modifying drugs and his disability.
On the contrary, Dr K. admitted that arthritis was incurable and
almost invariably led to disability. The Court finds, therefore, that
it is not substantiated that treatment with disease-modifying drugs
was indicated in the applicant's case or that the absence of such
treatment had an adverse effect on the development of his disease.
Although his condition had indeed deteriorated by 2004, there is
insufficient evidence to conclude that this was the result of
inadequate treatment rather than the natural and intrinsic consequence
of his chronic disease.
138. As regards the allegation that the applicant did not receive the
anti-inflammatory pills and hormone injections recommended for him,
the Court notes that the applicant was prescribed anti-inflammatory
treatment first by the remand centre doctor in April 2001 and January
2002 (see paragraphs 53 and 56 above), and subsequently by Dr L., who
additionally recommended ointments, hepatoprotective treatment and
intra-articular hormone injections (see paragraphs 60 and 68 above).
Dr L. particularly stressed that the applicant's condition required
constant application of the anti-inflammatory treatment. However,
there is no indication in the applicant's medical records that he
received the prescribed medication, apart from ten injections in May
and June 2002 (see paragraph 57 above). The Court reiterates that the
authorities of the penitentiary institution have an obligation to keep
a record of the applicant's state of health and the treatment he
underwent while in detention. Such medical records should contain
sufficient information specifying what kind of treatment the patient
was prescribed, what treatment he actually received, when and by whom
it was administered, how the applicant's state of health was
monitored, and so on. If the applicant's medical file is not specific
enough in these respects, the Court may draw inferences (see
Aleksanyan v. Russia, no. 46468/06, S: 147, 22 December 2008). Given
that the applicant's medical records do not contain any entries
confirming that the prescribed medication was in fact administered to
him, and taking into account the fact that Dr L. stated unambiguously
in her report of 27 May 2003 that her recommendations had not been
complied with (see paragraph 68 above), the Court finds it established
that the applicant did not receive the treatment prescribed to him by
his doctor.
139. Further, the Court takes note of the fact that on an unspecified
date in the summer or autumn of 2003 the applicant refused to take the
anti-inflammatory pills proposed to him, insisting that he should be
given injections (see paragraph 69 above). This circumstance, however,
is of little significance for the present case, as by the time of the
refusal the applicant had already been left without any treatment for
more than two years. In any event, the treatment proposed on that
occasion did not correspond to the doctor's prescription. It was
limited to anti-inflammatory pills and did not include the injections,
ointments or hepatoprotective pills prescribed by Dr L.
140. Finally, it remains to be ascertained whether the failure to
provide the prescribed treatment caused the applicant suffering
attaining the minimum level of severity required to fall within the
scope of Article 3. The Court notes in this respect that the treatment
recommended to the applicant was aimed at soothing the inflammation in
the affected joints and, as a consequence, reducing the pain. As a
result of the failure to administer that treatment the applicant must
have endured constant and considerable suffering. Although he was
occasionally supplied with painkillers, their effect was limited in
time and, in any event, they could not be considered as a proper
substitute for the treatment duly prescribed by the doctor. Indeed,
the Court observes that the applicant often complained of pain in his
joints (see paragraphs 58, 68 and 69 above) which must have been due
to the failure to administer the prescribed medication. Accordingly,
the Court is satisfied that the acceptable threshold of suffering was
exceeded.
141. The foregoing considerations are sufficient to enable the Court
to conclude that by leaving the applicant to suffer considerable pain
for a prolonged period of time as a result of the failure to provide
him with treatment for his arthritis, the custodial authorities in
remand centre no. IZ-66/1 in Yekaterinburg failed to meet the
standards of medical care for detained persons imposed by Article 3 of
the Convention and subjected the applicant to inhuman and degrading
treatment. There has therefore been a violation of that Article.
III. ALLEGED VIOLATION OF ARTICLE 6 S: 1 OF THE CONVENTION
142. The applicant further complained under Article 6 S: 1 of the
Convention that he had been tried and convicted by a court which was
not composed in accordance with the law. The relevant parts of Article
6 S: 1 read as follows:
"In the determination of ... any criminal charge against him, everyone
is entitled to a fair ... hearing ... by [a] ... tribunal established
by law."
A. Admissibility
143. The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 S: 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Submissions by the parties
144. The Government submitted that the lay judges T., O. and Ye. had
been competent to sit in the applicant's case as they had been
lawfully elected in 1993 and 1999 and their statutory term of office
had been extended by the presidential decrees of 22 March 1995, 23
January 1997 and 25 January 2000. They had been chosen by lot to sit
in the applicant's case. Accordingly, the lay judges had been selected
in accordance with the procedure prescribed by domestic law.
145. The applicant submitted that the Government had not produced any
documents confirming that there had been a legal basis for lay judges
T., O. and Ye. to sit on the judicial bench that had examined his
case. In his opinion, the selection of lay judges for his case should
have been governed by the Lay Judges Act which was in force at the
material time. The presidential decree of 25 January 2000 ran contrary
to that Act as it allowed the lay judges selected in accordance with
the old procedure to remain in office without any time-limit, and
thereby unlawfully deferred the implementation of the Lay Judges Act
for an uncertain period of time. Further, the Government had not
submitted any documents showing that the lay judges had indeed been
drawn by lot as required by the Lay Judges Act. Therefore, the lay
judges who had examined the applicant's case had not been appointed in
accordance with the procedure established by the Lay Judges Act. The
applicant referred to the case of Posokhov v. Russia (no. 63486/00,
ECHR 2003-IV), in which a violation of Article 6 S: 1 was found in
similar circumstances.
2. The Court's assessment
146. The Court reiterates that the phrase "established by law" covers
not only the legal basis for the very existence of a "tribunal" but
also the composition of the bench in each case (see Buscarini v. San
Marino (dec.), no. 31657/96, 4 May 2000). The Court is therefore
required to examine allegations such as those made in the present case
concerning a breach of the domestic rules on the appointment of
judicial officers. The fact that the allegation in the present case
concerned lay judges does not make it any less important as, by virtue
of Article 15 of the Code of Criminal Procedure then in force, in
their judicial capacity lay judges enjoyed the same rights as
professional judges (see paragraph 86 above).
147. The Court has already found violations of Article 6 S: 1 of the
Convention in a number of cases against Russia pertaining to the
appointment of lay judges. In some cases the finding of a violation
was made on account of the domestic authorities' failure to produce
documentary evidence showing that the lay judges had been appointed in
accordance with the procedure established by domestic law, combined
with "the apparent failure to observe the requirements of the Lay
Judges Act regarding the drawing of random lots and two weeks' service
per year" (see, for example, Fedotova v. Russia, no. 73225/01, S:S:
41-44, 13 April 2006, and Posokhov, cited above, S:S: 40-44). In
another case a serious breach of the procedure for the appointment of
lay judges was in itself sufficient to undermine the fairness of the
criminal proceedings against the applicant and to lead the Court to
the conclusion that the courts which heard the applicant's case had
not been tribunals "established by law" (see Ilatovskiy v. Russia, no.
6945/04, S:S: 39-43, 9 July 2009).
148. Turning to the facts of the present case, the Court observes
that according to the Government the lay judges who tried the
applicant's case were selected in 1993 and 1999, that is, at a time
when the RSFSR Judicial System Act of 1981 was still in force. Their
term of office was several times extended by presidential decrees, the
last of which, the decree of 25 January 2000, provided that all lay
judges should remain in office pending compilation and approval of the
new lists of lay judges in accordance with the Lay Judges Act, which
had just entered into force. By the time of the beginning of the
applicant's trial, almost two years after the entry into force of the
Lay Judges Act, those lists still had not been compiled and the lay
judges elected in 1993 and 1999 remained in office. Accordingly, in
order to establish whether the Sverdlovskiy Regional Court which
convicted the applicant can be regarded as a "tribunal established by
law", the Court has to examine two related issues. Firstly, it has to
decide whether the essential requirements of the procedure for
selection of lay judges, as laid down in the RSFSR Judicial System Act
of 1981, were respected. Secondly, it has to examine the lawfulness of
the extensions of the lay judges' term of office by the presidential
decrees, and especially by the decree of 25 January 2000 which, the
applicant alleged, was incompatible with the recently adopted Lay
Judges Act.
149. On the first issue, the Court notes that the Government
submitted the decision of the Sverdlovskiy Regional Legislature
selecting Ms Ye. to serve as a lay judge at the Sverdlovskiy Regional
Court (see paragraph 26 above). The Court is therefore satisfied that
Ms Ye. had been lawfully appointed to that office. By contrast, the
Government failed to produce any documents that could constitute the
legal basis for the appointment of Ms T. and Ms O. as lay judges at
the Sverdlovskiy Regional Court. Nor were the domestic authorities
able to produce, in reply to the applicant's requests, any evidence
that those persons had ever been elected to serve as lay judges. It
follows that there existed no legal grounds for the participation of
lay judges T. and O. in the administration of justice. Accordingly,
the Sverdlovskiy Regional Court which convicted the applicant could
not be regarded as a "tribunal established by law".
150. In view of the above finding, it is unnecessary to examine
separately whether the fairness of the proceedings was also breached
because the lay judges' term of office had been extended by
presidential decrees after the Lay Judges Act laying down the new
procedure for the selection of lay judges had already come into force
(see Ilatovskiy, cited above, S: 43). Nor is it necessary to ascertain
whether the requirements of the Lay Judges Act regarding the drawing
of random lots were observed in the applicant's case.
151. The Court concludes that the fairness of the criminal
proceedings against the applicant was undermined by serious defects in
the initial selection of the lay judges who heard the applicant's
case. There has therefore been a violation of Article 6 S: 1 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
152. The applicant further complained that his representative before
the Court had been refused permission to visit him in remand centre
no. IZ-66/1 in Yekaterinburg. He relied on Article 34 of the
Convention, which provides as follows:
"The Court may receive applications from any person, non-governmental
organisation or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto. The High Contracting
Parties undertake not to hinder in any way the effective exercise of
this right."
153. The applicant submitted that by forbidding Ms Demeneva from
visiting him in the remand centre, the domestic authorities had
hindered the preparation of his application to the Court. Although the
applicant was represented by two advocates in the domestic
proceedings, those advocates had no experience of the Court's
procedures or case-law. The applicant had therefore retained Ms
Demeneva, a lawyer with an NGO specialising in international
protection of human rights, to represent his interests in the
Strasbourg proceedings. However, Ms Demeneva had not been allowed to
visit him, and therefore they had been unable to discuss in person
many issues crucial for the preparation of the application.
154. The Government submitted that the applicant had been represented
by two professional advocates in the domestic proceedings. Ms
Demeneva, not a professional advocate, had no right to visit the
applicant unless a special permission was issued by the courts. In
July 2003 Ms Demeneva had been issued with a visitor's permit.
However, she had not been allowed to visit the applicant as she had
failed to produce a judicial decision by which she had been admitted
to act as counsel for the applicant, as required by domestic law (see
paragraph 111 above). In the Government's opinion, it followed from
the above that the applicant's right of petition had not been
hindered.
155. The Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted by
Article 34 that applicants or potential applicants should be able to
communicate freely with the Court without being subjected to any form
of pressure from the authorities to withdraw or modify their
complaints (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99
and 46951/99, S: 102, ECHR 2005-I). In this context, "pressure"
includes not only direct coercion and flagrant acts of intimidation
but also other improper indirect acts or contacts designed to dissuade
or discourage applicants from pursuing a Convention remedy. The fact
that the individual actually managed to pursue his application does
not prevent an issue arising under Article 34: should the Government's
action make it more difficult for the individual to exercise his right
of petition, this amounts to "hindering" his rights under Article 34
(see Akdivar and Others v. Turkey, 16 September 1996, S:S: 105 and
254, Reports 1996-IV). The intentions or reasons underlying the acts
or omissions in question are of little relevance when assessing
whether Article 34 of the Convention was complied with; what matters
is whether the situation created as a result of the authorities' act
or omission conforms to Article 34 (see Paladi v. Moldova [GC],
no. 39806/05, S: 87, 10 March 2009).
156. The Court has already found in a number of cases that measures
limiting the applicant's contacts with his representative may
constitute interference with the exercise of the applicant's right of
individual petition (see, for example, Shtukaturov v. Russia, no.
44009/05, S: 140, 27 March 2008, where a ban on lawyer's visits,
coupled with a ban on telephone calls and correspondence, was held to
be incompatible with the respondent State's obligations under
Article 34 of the Convention). The Court has, however, accepted that
compliance by a representative with certain formal requirements might
be necessary before obtaining access to a detainee, for instance for
security reasons or in order to prevent collusion or perversion of the
course of the investigation or justice (see Melnikov v. Russia,
no. 23610/03, S: 96, 14 January 2010). At the same time, excessive
formalities in such matters, such as those that could de facto prevent
a prospective applicant from effectively enjoying his right of
individual petition, have been found to be inacceptable. By contrast,
where the domestic formalities were easy to comply with, no issue
arose under Article 34 (see Lebedev v. Russia, no. 4493/04, S:S: 119,
25 October 2007).
157. Turning to the present case, the Court observes that the
applicant's representative before the Court, Ms Demeneva, is a lawyer
with a human rights NGO. She is not a professional advocate and does
not belong to any bar association. However, given that under Rule 36
S: 4 (a) of the Rules of Court permission to represent an applicant
may be granted to a non-advocate, the Contracting States must ensure
that non-advocate representatives are allowed to visit detainees who
have lodged or intend to lodge an application with the Court under the
same conditions as advocates. Russian law does not provide for any
special rules for visits of detainees by their representatives before
the Court. Accordingly, the general visiting rules designed for
counsel representing a detainee in domestic criminal proceedings apply
to visits from representatives before the Court. As far as
non-advocates are concerned, section 18 of the Detention Act provides
that a non-advocate may visit a detainee in a remand centre only if
the former possesses a judicial decision by which he or she has been
admitted to act as counsel in the domestic criminal proceedings, such
admittance being within the discretionary powers of the trial or
appeal judge (see paragraphs 110 and 111 above). No exceptions to that
rule are possible. Accordingly, non-advocate representatives before
the Court are faced with difficulties in obtaining permission to visit
their clients.
158. The circumstances of the present case illustrate those
difficulties amply. The domestic courts refused to admit Ms Demeneva
as counsel for the applicant (see paragraphs 20 and 77 above). After
Ms Demeneva's repeated requests for permission to visit the applicant,
supported by the applicant's letters expressing his wish to meet her
for the preparation of an application to the European Court, the
Regional Court issued Ms Demeneva with a visitor's permit. However,
the remand centre management did not allow Ms Demeneva to meet the
applicant, on the ground that she did not possess a judicial decision
by which she had been admitted to act as counsel for the applicant in
the domestic proceedings. After the Supreme Court gave the final
judgment in the applicant's criminal case the visitor's permit was
annulled without Ms Demeneva having once seen the applicant. As a
result Ms Demeneva was unable to visit the applicant for almost a
year, despite her repeated attempts to obtain permission. Although the
District Court eventually ordered the remand centre to organise the
applicant's meetings with Ms Demeneva, that order could not be
enforced owing to the applicant's transfer to a correctional colony
(see paragraphs 78 to 85 above).
159. The Court notes that it was never alleged that meetings between
the applicant and Ms Demeneva might present any security risk or a
risk of collusion or perversion of the course of justice. It appears
that the refusal of visits was due to a gap in the domestic law, which
was designed to govern meetings with counsel in domestic proceedings
and did not envisage dealing with requests for visits from
representatives before the Court.
160. In view of the foregoing, the Court considers that the
restriction of the applicant's contacts with his representative before
the Court constituted an interference with the exercise of his right
of individual petition which is incompatible with the respondent
State's obligations under Article 34 of the Convention. The Court
therefore concludes that the respondent State has failed to comply
with its obligations under Article 34 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
161. The Court has examined the other complaints submitted by the
applicant. However, having regard to all the material in its
possession, and in so far as these complaints fall within the Court's
competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 S:S:
3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
162. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured
party."
A. Damage
163. The applicant claimed 30,000 euros (EUR) in respect of
non-pecuniary damage.
164. The Government submitted that the claim was excessive and had
not been substantiated by documents. In their opinion the finding of a
violation would constitute sufficient just satisfaction.
165. The Court accepts that the applicant suffered distress and
frustration which cannot be compensated for solely by the finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant EUR 21,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
166. The applicant did not claim costs and expenses. Accordingly,
there is no call to make an award under this head.
C. Default interest
167. The Court considers it appropriate that the default interest
should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the allegedly inhuman
conditions of the applicant's detention, the allegedly inadequate
medical assistance afforded to him and the allegedly unlawful
composition of the trial court admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article 3 of the
Convention on account of the inhuman conditions of the applicant's
detention;
3. Holds that there has been a violation of Article 3 of the
Convention on account of the inadequate medical assistance afforded to
the applicant;
4. Holds that there has been a violation of Article 6 S: 1 of the
Convention;
5. Holds that the respondent State has failed to comply with its
obligations under Article 34 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in accordance
with Article 44 S: 2 of the Convention, EUR 21,000 (twenty-one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
7. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 S:S: 2 and 3 of the Rules of Court.
Sren Nielsen Christos Rozakis
Registrar President
ZAKHARKIN v. RUSSIA JUDGMENT
ZAKHARKIN v. RUSSIA JUDGMENT
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