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Судебное дело "Борисов против России"

Постановление ЕСПЧ по делу Борисов против России от 13 марта 2012 года (на английском языке).




                               FIRST SECTION

                         CASE OF BORISOV v. RUSSIA

                         (Application no. 12543/09)



                               13 March 2012

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

   In the case of Borisov v. Russia,

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

   Nina Vajic, President,
   Anatoly Kovler,
   Elisabeth Steiner,
   Mirjana Lazarova Trajkovska,
   Julia Laffranque,
   Linos-Alexandre Sicilianos,
   Erik Mo/se, judges,
   and So/ren Nielsen, Section Registrar,

   Having deliberated in private on 21 February 2012,

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


   1.  The  case  originated in an application (no. 12543/09) against the
   Russian  Federation  lodged  with  the  Court  under Article 34 of the
   Convention for the Protection of Human Rights and Fundamental Freedoms
   ("the  Convention")  by  a Russian national, Mr Vyacheslav Viktorovich
   Borisov ("the applicant"), on 13 January 2009.

   2.  The applicant was represented by Mr A. Burkov, a lawyer practising
   in  Yekaterinburg.  The  Russian  Government  ("the  Government") were
   represented  by  Mr  G.  Matyushkin,  Representative  of  the  Russian
   Federation at the European Court of Human Rights.

   3.  The  applicant  complained,  in particular, that the conditions of
   his  pre-trial  detention  had  been  inhuman  and  degrading. He also
   claimed that his right to defend himself in person had been violated.

   4.  On  30  November  2009  the  Court decided to apply Rule 41 of the
   Rules  of  Court  and  to  give  notice  of  the  application  to  the
   Government. The Court further decided to rule on the admissibility and
   merits of the application at the same time (Article 29 S: 1).



   5.  The applicant was born in 1964 and lives in Yekaterinburg.

   A.  Criminal proceedings

   6.  On 1 September 2008 the Chkalovskiy District Court, Yekaterinburg,
   convicted the applicant of aggravated fraud and sentenced him to seven
   years' imprisonment. The operative part of the judgment provided:

   "The  judgment  may  be  appealed against in the Sverdlovskiy Regional
   Court... If an appeal is lodged, the convicted person has the right to
   ask for leave to appear before the appeal court".

   7.  According  to  the  applicant,  on  7  September  2008 he lodged a
   preliminary  statement  of  appeal,  in  which  he sought, among other
   things,  leave  to appear before the appeal court. It appears that the
   statement was lost and that the applicant became aware of that fact no
   later than 13 October 2008.

   8.  On  20  October  2008 the applicant introduced a full statement of
   appeal,  followed  by  two addenda on 27 October and 14 November 2008.
   None of these documents referred to his request to appear in person.

   9.  On  21  November 2008 the Sverdlovsk Regional Court held an appeal
   hearing  and  upheld the conviction. Counsel for the applicant, though
   not the applicant himself, was present and made oral submissions.

   B.  Conditions of detention

   10.  On  1  September  2008  the applicant was placed in Yekaterinburg
   remand  centre  IZ-66/1.  It  appears  that he was held there at least
   until  7 June 2010,  the  date  of  the latest correspondence with the

   11.  The  Government  produced,  among  others,  three documents dated
   14 January  2010  from  the  director  of remand prison IZ-66/1, which
   stated  that  the  applicant  was an inmate in cells 327, 413, 424 and

   12.  According  to  the  documents, the applicant was detained in cell
   327  from  1 September to 9 December 2008 and from 22 December 2008 to
   29 April 2009. The cell measured 31 sq. m and was equipped with twelve
   bunk  beds.  During  the  above  periods  it  held  from  thirteen  to
   twenty-nine and from eight to twenty detainees respectively.

   13.  Cell  413,  occupied by the applicant from 9 to 22 December 2008,
   measured 9 sq. m and had two bunk beds. During the indicated period it
   held two inmates.

   14.  Cell  424,  where  the  applicant  was  detained from 29 April to
   2 September  2009  and  from 3 September 2009 to at least 7 June 2010,
   measured  27  sq.  m and was equipped with ten bunk beds. It held from
   three  to  twelve  and  from  five  to  eleven  detainees during these

   15.  Cell  425  was  occupied  by  the applicant from 2 to 3 September
   2009.  It  measured  15  sq. m and was equipped with four bunk beds. A
   total of two inmates stayed in the cell during that period.

   16.  The  applicant  disputed  the Government's submissions concerning
   the  number  of  inmates  and the number of bunk beds. He claimed that
   cell  327  had  contained  up to forty-five and cell 424 up to sixteen
   detainees.  He  also alleged that cell 327 had had eighteen bunks, and
   that  cell  424  had  been  equipped  with  eight sleeping places. The
   applicant  pointed  out  that  he had frequently had to share his bunk
   with other inmates.

   17.  According  to  the  applicant,  the  cells  were  poorly  lit and
   ventilated.  The  toilet pan was not separated from the living area by
   any  partition.  He was not provided with any toiletries or individual
   bedding,  and  a  shower was allowed only every ten days. The diet was


   18.  For  a  comprehensive  summary  of the domestic and international
   standards of conditions of detention in remand prisons, see Benediktov
   v. Russia (no. 106/02, S:S: 20 and 21, 10 May 2007).

   19.  The  Code  of Criminal Procedure requires appeal courts to verify
   the  legality,  validity  and  fairness  of  first-instance  judgments
   (Article 360 S: 1). A convicted person held in custody who expresses a
   wish  to  be present at the examination of an appeal shall be entitled
   to  participate  either  directly in the court session or to state his
   case  by  video  link. The court shall make a decision with respect to
   the  form  of  participation  of  the  convicted  person  in the court
   hearing.  A  convicted  person who has appeared before the court shall
   always  be entitled to take part in the appeal hearing (Article 376 S:



   20.  The  applicant  complained  that  the conditions of his pre-trial
   detention  violated  Article  3  of  the  Convention,  which  reads as

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

   A.  Admissibility

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

   B.  Merits

   22.  The   Government  submitted  that  the  applicant  had  not  been
   subjected  to  torture,  inhuman  or degrading treatment or punishment
   during  the  period  of  his detention, and that the conditions of his
   detention had been compatible with Russian law and the requirements of
   Article 3 of the Convention.

   23.  The   applicant  submitted  that  the  cells  had  been  severely
   overcrowded.  With  the  exception of the short periods spent in cells
   413  and  425,  he was afforded no more than 3 sq. m of personal space
   and had to take turns with other detainees to sleep.

   24.  The  Court  observes  that there are certain discrepancies in the
   parties'  submissions concerning the number of sleeping places and the
   actual number of detainees, as demonstrated by the documents submitted
   by  the Government (see paragraphs 11-15 above) and the by applicant's
   account (see paragraph 16 above). However, both parties agree that the
   occupancy rate regularly exceeded the design capacity of the cells and
   that  most of the time the applicant was afforded less than 3 sq. m of
   personal space.

   25.  The  Court  reiterates  that  in  many  cases  in  which detained
   applicants  had  at  their  disposal  less than three square metres of
   personal  space,  it has already found that the lack of personal space
   afforded to them was so extreme as to justify in itself a finding of a
   violation   of   Article   3   of  the  Convention  (see,  among  many
   others, Pitalev    v.   Russia,   no.   34393/03,   S:   47,   30 July
   2009; Denisenko  and  Bogdanchikov  v.  Russia,  no.  3811/02,  S: 98,
   12 February 2009; Vlasov v. Russia, no. 78146/01, S: 81, 12 June 2008;
   Kantyrev  v.  Russia,  no.  37213/02, S:S: 50-51, 21 June 2007; Andrey
   Frolov  v. Russia,  no.  205/02,  S:S: 47-49, 29 March 2007; Labzov v.
   Russia,  no. 62208/00,  S:  44,  16  June  2005; Mayzit v. Russia, no.
   63378/00,  S: 40, 20 January 2005; Tsarenko v. Russia, no. 5235/09, S:
   51,  3  March  2011;  and  Nisiotis  v.  Greece,  no. 34704/08, S: 39,
   10 February  2011).  The  Court  is  also mindful of the fact that the
   cells in which the applicant was detained contained some furniture and
   fittings,  such as bunk beds and the lavatory, which must have further
   reduced  the  floor  area  available  to him. The Court finds that the
   applicant  was  detained in those cramped conditions for more than one
   year and ten months.

   26.  The  Court  notes  that  even  though there is no indication that
   there  was  a positive intention to humiliate or debase the applicant,
   the  Court  finds that the fact that he was obliged to live, sleep and
   use  the toilet in the overcrowded cell was itself sufficient to cause
   distress  or  hardship of an intensity exceeding the unavoidable level
   of  suffering  inherent in detention, and to arouse in him feelings of
   anguish  and  inferiority capable of humiliating and debasing him (see
   Tsarenko, cited above, S: 52, and Nisiotis, cited above, S: 37).

   27.  Having  regard  to  its  case-law on the subject and the material
   submitted  by  the parties, the Court concludes that the conditions of
   the  applicant's detention in Yekaterinburg remand prison IZ-66/1 were
   inhuman and degrading and thus violated Article 3 of the Convention.


   28.  The  applicant  complained  that  his  right  to take part in the
   appeal  hearing had been violated. He relied on Article 6 S:S: 1 and 3
   (c) of the Convention, the relevant part of which read as follows:

   "1.   ...[E]veryone   is  entitled  to  a  fair...  hearing...  by  an
   independent and impartial tribunal... .


   3.  Everyone charged with a criminal offence has the following minimum


   (c) to defend himself in person or through legal assistance of his own

   29.  The Government contested that argument, claiming that at no point
   had  the applicant informed the authorities of his wish to participate
   in   the  appeal  hearing.  In  any  event,  the  applicant  had  been
   represented  by  counsel, who had attended the hearing and represented
   his position to the court.

   30.  The  applicant  maintained  his  complaint. He argued that he had
   made  an  explicit  request to attend the appeal hearing personally in
   his  preliminary  statement  of  appeal,  which  had  been  lost.  The
   applicant further claimed that since Russian appeal courts can examine
   questions  both  of law and of fact, his presence at the hearing would
   have  been essential even if he had not made such a request, otherwise
   the proceedings could not be considered adversarial.

   A.  Admissibility

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

   B.  Merits

   32.  The  Court  has  previously  established  that  the guarantees of
   Article  6,  in  particular the right to be present and to participate
   effectively  in a hearing, apply not only to first-instance trial, but
   also to proceedings in courts of appeal (see, among other authorities,
   Kulikowski  v.  Poland  (revision),  no.  18353/03, S: 59, 21 December

   33.  This  is  particularly  important  for  the Russian legal system,
   where  the  appeal  courts have jurisdiction to deal with questions of
   law,  as  well  as  questions  of  fact  pertaining  both  to criminal
   liability  and  to  sentencing. They are empowered to examine evidence
   and  additional  materials submitted by the parties directly, with the
   effect  that they may uphold a first-instance judgment, quash or amend
   it, or remit the case for a fresh trial (see paragraph 19 above).

   34.  However,  the guarantees of Article 6 are not absolute. According
   to  the Court's case-law, neither the letter nor the spirit of Article
   6  of  the Convention prevents a person from waiving of his or her own
   free  will, either expressly or tacitly, entitlement to the guarantees
   of  this provision (see Hermi v. Italy [GC], no. 18114/02, S: 73, ECHR
   2006-XII).  But  such  a  waiver  must,  if  it is to be effective for
   Convention  purposes,  be  established  in  an  unequivocal manner, be
   attended  by  minimum safeguards commensurate with its importance, and
   should  not run counter to any important public interest (see Jones v.
   the  United  Kingdom  (dec.),  no. 30900/02,  9  September  2003,  and
   Sejdovic  v.  Italy  [GC],  no.  56581/00, S: 87, 1 March 2006; Hermi,
   cited  above,  S:  74;  and Panovits v. Cyprus, no. 4268/04, S: 68, 11
   December 2008).

   35.  It  remains to be determined whether, in the circumstances of the
   case,  the  applicant  can  be  said  to  have implicitly, through his
   conduct, waived his right to appear before the appeal court.

   36.  Under  Russian  law,  the applicant's right to participate in the
   appeal hearing, directly or by video link, was conditional on making a
   request  to  that  effect (see paragraph 19 above). Such a requirement
   does  not  in  itself  contradict  the Convention, if the procedure is
   clearly  set  out  in  the  domestic  law  and  complied  with  by all
   participants  of the proceedings (see Kononov v. Russia, no. 41938/04,
   S: 40, 27 January 2011).

   37.  It  is  not  disputed by the parties that the applicant was aware
   that  he  had to ask for leave to appear. He had been apprised of this
   requirement  in the operative part of the first-instance judgment (see
   paragraph  6  above). Furthermore, a request to that effect appears to
   have featured in his preliminary statement of appeal.

   38.  After  the  applicant  learned that his preliminary statement had
   been  lost,  he  introduced a new statement of appeal and two addenda,
   which were duly received and examined by the domestic courts. However,
   the  applicant,  who  was  assisted  by  a  professional lawyer of his
   choosing, did not reiterate his request to attend personally in any of
   the  subsequent  documents without giving any explanation as to why he
   omitted to do so.

   39.  In  such  circumstances,  the  Court concludes that the applicant
   failed  to  inform  the  Russian authorities of his wish to attend the
   appeal   hearing   personally,  and  thus,  through  his  conduct,  he
   implicitly waived that right.

   40.  As  to  the  adversarial  character of the proceedings, the Court
   notes  that  the applicant was represented by counsel at all stages of
   the proceedings, including the appeal hearing. Moreover, the applicant
   did  not explain in his submissions why it was important for him to be
   personally  present  in  the courtroom and what specific statements or
   evidence, distinct from those made by counsel, he wished to lay before
   the  appeal  court.  Accordingly,  there  is  no  indication  that the
   adversarial character of the proceedings was compromised.

   41.  In the light of the foregoing considerations, the Court concludes
   that  there  has been no violation of Article 6 S: 1 of the Convention
   taken  in  conjunction  with  Article  6  S:  3  (c)  as  regards  the
   applicant's absence from the appeal hearing.


   42.  The  applicant complained under Article 6 of the Convention about
   the  outcome of the criminal proceedings and alleged violations of the
   presumption  of  innocence  and  of  his  right  to  adequate time and
   facilities  to  prepare his defence. Also, he complained under Article
   13  of  a  lack  of effective domestic remedies and, with reference to
   Article 14, of discrimination on the ground of his political opinions.

   43.  Having  considered  his  submissions  in  the  light  of  all the
   material  in  its  possession,  the Court finds that, in so far as the
   matters  complained of are within its competence, they do not disclose
   any  appearance  of  a violation of the rights and freedoms set out in
   the Convention.

   44.  It  follows  that  this  part of the application must be declared
   inadmissible  as manifestly ill-founded, pursuant to Article 35 S:S: 3
   and 4 of the Convention.


   45.  Article 41 of the Convention provides:

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

   A.  Damage

   46.  The  applicant  claimed  15,000  euros  (EUR) in compensation for
   non-pecuniary  damage  incurred as a result of the infringement of his
   Convention rights.

   47.  The   Government   contested   the  claim  for  compensation  for
   non-pecuniary damage, considering the amount excessive.

   48.  Making  an  assessment  on  an  equitable  basis  and taking into
   account  its  case-law,  the  Court  awards the applicant EUR 7,500 in
   respect of non-pecuniary damage, plus any tax that may be chargeable.

   B.  Costs and expenses

   49.  The  applicant  also  claimed  EUR  2,275  for costs and expenses
   incurred before the Court.

   50.  The Government did not comment.

   51.  According  to  the  Court's case-law, an applicant is entitled to
   the  reimbursement of costs and expenses only in so far as it has been
   shown  that  these have been actually and necessarily incurred and are
   reasonable  as  to quantum. The Court notes that the applicant did not
   submit  any  documents confirming that the expenses to which he refers
   have  actually  been  incurred,  and  rejects  his claim for costs and

   C.  Default interest

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


   1.  Declares   the   complaints   concerning  the  conditions  of  the
   applicant's  pre-trial  detention  and  his  absence  from  the appeal
   hearing admissible and the remainder of the application inadmissible;

   2.  Holds  that  there  has  been  a  violation  of  Article  3 of the
   Convention  as  regards  the  inhuman  and degrading conditions of the
   applicant's detention in Yekaterinburg remand prison IZ-66/1;

   3.  Holds  that  there has been no violation of Article 6 S:S: 1 and 3
   (c)  of  the  Convention  as  regards the applicant's absence from the
   appeal hearing;

   4.  Holds

   (a)  that  the  respondent State is to pay the applicant, within three
   months  of  the date on which the judgment becomes final in accordance
   with Article 44 S: 2 of the Convention, EUR 7,500 (seven thousand five
   hundred  euros)  in respect of non-pecuniary damage, plus any tax that
   may  be  chargeable  to  the  applicant,  to be converted into Russian
   roubles at the rate applicable on the date of settlement;

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

   5.  Dismisses   the  remainder  of  the  applicant's  claim  for  just

   Done in English, and notified in writing on 13 March 2012, pursuant to
   Rule 77 S:S: 2 and 3 of the Rules of Court.

   So/ren Nielsen Nina Vajic
   Registrar President



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15.05.2015г. распоряжением Минюста РФ СРОО "Сутяжник" включена в реестр иностранных агентов.