ITEMID: 001-99382
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LOGVINENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1984 and is serving a prison sentence in the Ivanovo Region.
7. On 2 January 2002 the applicant was arrested on suspicion of manslaughter.
8. On 5 January 2002 the prosecutor's office authorised the applicant's detention pending investigation. The applicant's detention was extended on several occasions. The parties did not submit copies of the relevant court orders. According to the Government, when deciding on the applicant's pretrial detention, the domestic authorities noted that he had been charged with very serious offences, including two counts of manslaughter, and that he might abscond or interfere with administration of justice if released.
9. On 26 June 2003 the Regional Court authorised the applicant's detention pending the study of the case-file. In particular, the court noted:
“... [the applicant] is charged with several criminal offences, including very serious ones. It is still necessary to keep him in custody. The court does not consider it possible to apply any other restrictive measure ...
The materials submitted show that ... at school [the applicant] received satisfactory references concerning his character. He had a criminal record. In May 2001 he was found guilty by the Leninskiy District Court of Ivanovo of robbery, extortion and theft and received a conditional sentence. His criminal record was erased by virtue of the amnesty decree. He also has a history of administrative misdemeanours. The references concerning his character obtained from the place of his residence are negative. His parents cannot control his behaviour. His conduct is socially dangerous. He has [repeatedly] failed to comply with internal regulations at the remand centre.
In such circumstances, the court concludes that the applicant should be detained pending the study of the case-file ...”
10. On 22 April 2004 the Leninskiy District Court of Ivanovo concluded the trial of six defendants. The District Court found the applicant guilty of trespassing and manslaughter and sentenced him to nine years and four months' imprisonment.
11. On 25 May 2004 the Ivanovo Regional Court upheld the applicant's conviction on appeal. The applicant and F., one of his co-defendants, sought supervisory review of the judgments.
12. On 23 May 2005 the Supreme Court of the Russian Federation granted their request for supervisory review.
13. On 22 June 2005 the Supreme Court quashed the judgments of 22 April and 25 May 2004 in respect of the applicant and F. and remitted the matter to the lower courts for fresh consideration. It further extended, without specifying the grounds, the defendants' detention pending trial until 22 September 2005.
14. On 12 July 2005 the Leninskiy District Court of Ivanovo received the case file.
15. On 28 July 2005 the District Court scheduled the hearing of the case for 11 August 2005 and dismissed a request by the defendants for release. In particular, the court noted:
“F. and [the applicant] are charged with ... a very serious criminal offence against life and health.
In view of the above, the restrictive measure used in respect of F. and [the applicant] should remain unchanged.”
16. On 11 August 2005 the District Court stayed the proceedings owing to F.'s counsel's failure to appear. On 8 September 2005 the Regional Court found the decision of 11 August 2005 unlawful and quashed it on appeal.
17. The decision of 28 July 2005 was upheld on appeal by the Ivanovo Regional Court on 25 August 2005.
18. On 1 December 2005 the District Court issued an order authorising the defendants' pre-trial detention until 12 April 2006. In particular, the court noted:
“[The court] does not discern any grounds, as established by law, to change or lift the restrictive measure earlier applied in respect of [the defendants] since the circumstances taken into account by the court at the time the restrictive measure was applied have not ceased to exist. [The defendants] are charged with a very serious criminal offence ...”
19. On 12 January 2006 the Regional Court upheld the decision of 1 December 2005 on appeal. The court dismissed, inter alia, the applicant's complaint that his detention after 23 September 2005 had been unlawful. In particular, the court noted as follows:
“The supervisory-review court quashed the verdict and subsequent judicial decisions in respect of [the applicant] and F. and decided to remit the criminal case for fresh consideration to the Leninskiy District Court of Ivanovo. In accordance with Resolution of the Constitutional Court of Russia no. 4-P as of 22 March 2005, it also decided to extend the pre-trial detention in respect of [the applicant] and F. for three months. This decision remained in force until the preliminary hearing of the case [by the trial court].
When the trial court received the case-file, it considered the issue of the [defendants' pre-trial detention] in accordance [with applicable laws]. Pursuant to Article 255 § 2 of the Russian Code of Criminal Procedure, the pre-trial detention in respect of [the applicant] and F. shall be calculated as of the date when the trial court received the case-file, that is, as of 12 July 2005. As a general rule, the period of detention in question shall not exceed six months, notably 12 January 2006. Article 255 § 3 of the Russian Code of Criminal Procedure stipulates that the court may, upon expiry of the six-month period, extend the defendants' pre-trial detention if the defendants are charged with serious and particularly serious criminal offences. Each extension in that case cannot exceed three months. The Resolution of the Constitutional Court of Russia as of 22 March 2005 confirmed that Article 255 §§ 2 and 3 of the Russian Code of Criminal Procedure was not in breach of the Russian Constitution. The [defendants'] complaints in respect of [the alleged unlawfulness of their pre-trial detention] are based on an erroneous interpretation of the applicable rules of criminal procedure.”
20. On 2 March 2006 the District Court further extended the defendants' pre-trial detention until 12 July 2006, noting as follows:
“[The court] does not discern any grounds, as established by law, to change or lift the restrictive measure earlier applied in respect of [the defendants] since the circumstances taken into account by the court at the time the restrictive measure was applied have not ceased to exist. [The defendants] are charged with a very serious criminal offence ...”
21. On 25 April 2006 the Regional Court upheld the decision of 2 March 2006 on appeal.
22. On 7 June 2006 the District Court extended the defendants' pre-trial detention until 12 October 2006. The court reiterated verbatim the reasoning of the previous detention orders. On 4 July 2006 the Regional Court upheld the decision of 7 June 2006 on appeal.
23. On 21 August 2006 the District Court found the applicant guilty of manslaughter and sentenced him to seven years' imprisonment.
24. On 12 October 2006 the Regional Court upheld the applicant's conviction on appeal.
25. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
26. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
27. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
28. Under the new CCrP, “preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
29. Before 15 June 2001 the old CCrP set no time-limit for detention pending trial. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention pending trial could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. The new CCrP provides that the term of detention pending trial is calculated from the date the court receives the file up to the date on which the judgment is given. The period of detention pending trial may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
30. As regards the rule set forth in Article 255 § 3 of the new CCrP, the Supreme Court noted that, when deciding on extension of a defendant's detention pending trial, the court should indicate the grounds justifying the extension and its time-limit (paragraph 16).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-67062
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: FALKNER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Veronika Falkner, is an Austrian national, who was born in Sölden and lives in Wattens. She is represented before the Court by Mr Heiss, a lawyer practising in Innsbruck.
On 27 February 2001 the applicant had a road traffic accident.
On 2 March 2001 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) withdrew the applicant's driving licence for 8 months as it found that the applicant had caused an accident under the influence of alcohol and was therefore not reliable as a driver in traffic.
On 14 March 2001, the Innsbruck District Administrative Authority found that she had been driving under the influence of alcohol, contrary to sections 5 § 1 and 99 § 1 (b) of the Road Traffic Act 1960 (Straßenverkehrsordnung) and sentenced her to a fine of ATS 12,000 (approximately 872 €).
The applicant did not appeal against this decision.
On 28 June 2001 the Hall District Court found the applicant guilty of causing bodily harm by negligence “after allowing herself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which excluded her responsibility ...”.
It therefore convicted her under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions (fahrlässige Körperverletzung unter besonders gefährlichen Verhältnissen), and sentenced her to a fine of ATS 12, 000.
The applicant appealed against the District Court's judgment and submitted that she had already been convicted for drunken driving by the District Administrative Authority. The District's Court's judgment was therefore contrary to Article 4 of Protocol No. 7 to the Convention.
On 6 November 2001 the Innsbruck Regional Court partly granted the applicant's appeal. It found the applicant guilty of negligently causing bodily harm and convicted her under Article 88 § 1 of the Penal Code. However, it deleted the reference to the aggravating circumstances of Article 88 § 3 and reduced the fine to ATS 10,000 suspended on probation. The Regional Court held that whereas the District Administrative Authority, on 2 March 2001, had withdrawn the applicant's driving licence and, on 14 March 2001, had sentenced her for driving under the influence of alcohol, the District Court's conviction of driving under the influence of alcohol in particularly dangerous circumstances was in breach of the principle of ne bis in idem under Article 4 of Protocol No.7.
On 8 February 2002 the Procurator General's Office (Generalprokuratur) filed a plea of nullity for the preservation of law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).
On 22 August 2002 the Supreme Court (Oberster Gerichtshof) quashed the District Court's judgment of 28 June 2001 and the Regional Court's judgment of 6 November 2001.
It found that the District Administrative Authority had based its decision on the same facts which were considered by the ordinary courts. Thus, the applicant's conviction by the Administrative Authority constituted in principle a technical bar to prosecution (Verfolgungshindernis) of the applicant by the ordinary courts from the point of view of Article 4 of Protocol No. 7. The criminal proceedings before the ordinary courts should therefore be suspended pursuant to Article 412 of the Code of Criminal Procedure (Strafprozeßordnung).
Furthermore, the Supreme Court held that the applicant's conduct clearly fell within the jurisdiction of the ordinary courts, as it constituted a criminal offence and not an administrative offence. It referred in this regard to S. 99 subsection (6) (c) of the Road Traffic Act which provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Thus, the Administrative Authority had convicted the applicant although it had not been competent to do so.
On 23 September 2002 the Innsbruck District Administrative Authority informed the Hall District Court that the proceedings against the applicant were discontinued and the fine paid by the applicant reimbursed.
In a further statement it confirmed that the decision of 14 March 2001 had been annulled.
On 15 November 2002 the Hall District Court again convicted the applicant under Article 88 §§ 1 and 3 of the Penal Code of negligently causing bodily harm under particularly dangerous conditions, and sentenced her to a fine of 726 € suspended on probation. As regards the sentence the court referred to the Innsbruck Regional Court's judgment of 6 November 2001 and the principle prohibiting a “reformatio in peius” of the sentence.
The applicant appealed and submitted that the proceedings were contrary to Article 4 of Protocol No. 7 as she had been convicted for drunken driving by the District Administrative Authority. The conditions for reopening the case under § 2 of Article 4 of Protocol No. 7 were not met.
On 22 August 2003 the Innsbruck Regional Court dismissed the applicant's appeal. It noted that the Administrative Authority had annulled its conviction. Thus, the temporary technical bar to prosecution (Verfolgungshindernis) of the applicant before the ordinary courts did no longer exist. The courts could therefore resume the proceedings in the applicant's case which might be qualified as the re-opening of a case within the meaning of § 2 of Article 4 of Protocol No. 7.
S. 5 of the Road Traffic Act 1960 (Straßenverkehrsordnung) provides that it is an offence for a person to drive a vehicle under the influence of alcohol.
S. 99 of the 1960 Act provides, so far as relevant, that:
“(1b) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than € 581 and not more than € 3 633 or, in default of payment, with one to six weeks' imprisonment, for any person to drive a vehicle when under the influence of drink ...”
S. 99 subsection (6) (c) of the Road Traffic Act provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts
Under Article 88 § 1 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by up to three months' imprisonment or a fine up to 180 day-rates, to cause physical injury by negligence.
Article 88 § 3 increases the sentence in respect of causing injury by up to six months' imprisonment and up to 360 day-rates, if the special circumstances of Section 81 § 2 apply.
Article 81 § 2 applies where a person commits the offence “after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol ...”.
Article 412 of the Code of Criminal Procedure (Strafprozeßordnung) provides that criminal proceedings have to be suspended inter alia when the offender temporarily cannot be prosecuted by the courts.
According to Article 451 § 2 proceedings have to be discontinued inter alia when prosecution is not possible.


ITEMID: 001-59560
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ERDEM v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;Not necessary to examine Art. 6-2;No violation of Art. 8
JUDGES: Antonio Pastor Ridruejo
TEXT: 8. The applicant said that his name was Selahattin Erdem and that he was born in 1958 in Derik (Turkey). However, according to the Düsseldorf Court of Appeal (Oberlandesgericht), his real name was Duran Kalkan and he was born in 1954 in Adana (Turkey).
9. On 7 April 1988 the applicant, who had enjoyed political refugee status in France since December 1987, was arrested at the German border on suspicion of being a member of a terrorist organisation (Article 129a of the Criminal Code) and of forging documents (Article 267 of the Criminal Code).
10. On 8 April 1988 the investigating judge at the Federal Court of Justice (Bundesgerichtshof) issued a warrant for the applicant's detention pending trial. The applicant remained in custody until 7 March 1994.
11. On 20 October 1988 the Federal Public Prosecutor started a judicial investigation into the activities of the applicant and fifteen other leaders of the PKK (Workers' Party of Kurdistan).
12. On 31 August 1989 the Fifth Criminal Division of the Düsseldorf Court of Appeal made an order for the main proceedings, which included five other charges against members of the PKK, to begin.
13. The proceedings had been brought against eighteen accused and concerned six murders and six abductions, the structure of the terrorist organisation and a further five murders that had been committed within the organisation.
14. The trial began on 24 October 1989 and ended on 7 March 1994 after 353 days in court.
15. At the hearing on 7 December 1990 the public prosecutor asked the Court of Appeal to inform the applicant, in accordance with Article 265 of the Code of Criminal Procedure, that the charges he was facing could entail a conviction for murder (Article 211 of the Criminal Code) and for his activities as a leader (Rädelsführer) of a terrorist organisation (Article 129a § 2 of the Criminal Code).
16. By a decision of 8 March 1993, the Court of Appeal ruled that the accused, Mr Kalkan, faced convictions for being a member of a terrorist organisation and for murder, but not for his activities as a leader of that organisation.
17. Fourteen defendants were no longer involved in the proceedings: two defendants had been discharged in 1990 – one owing to the minor nature of the charges (Geringfügigkeit), the other because of unfitness to stand trial (Verhandlungsunfähigkeit) – while in 1992 ten others had fled the country and two had been convicted of separate offences.
...
23. While the applicant was in detention pending trial, his correspondence with his lawyer was monitored under powers contained in Article 148 § 2 of the Code of Criminal Procedure ...
24. In a 900-page judgment of 7 March 1994 the Düsseldorf Court of Appeal convicted the applicant of being a member of a terrorist organisation and sentenced him to six years' imprisonment (Article 129a § 1 of the Criminal Code). It found that he had been one of the founders of the PKK in 1978, had set up units in Lebanon and Syria and had been in charge of recruitment in those countries.
It added that in 1983 the applicant had led armed resistance in Turkey until he was deposed by Abdullah Öcalan, after being accused of incompetence and authoritarianism. Subsequently he had been assigned to the PKK's European headquarters in Cologne with Ali Cetiner, who was later to become the main prosecution witness (Kronzeuge) against him.
The Court of Appeal said that from December 1986 to December 1987 the applicant had been a member of the executive committee of the PKK, with responsibilities for, inter alia, surveillance and intelligence. At executive committee meetings he had proposed to identify and collect information on groups within the PKK that were hostile to Öcalan, to combat them, liquidating them if necessary. He had also helped to compile lists of persons to be liquidated.
25. In a judgment of 6 March 1996 the Federal Court of Justice dismissed the applicant's appeal, holding that the judgment of the Court of Appeal did not contain any errors of law that had operated to his detriment.
26. On 10 April 1996 the applicant lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht), in which he alleged in particular a violation of Article 5 § 3 of the Convention on the ground that he had not been brought to trial within a reasonable time, and that his correspondence had been monitored unlawfully.
27. On 19 February 1997 a three-member committee of the Constitutional Court refused to examine the appeal.
...
31. Article 148 § 1 of the Code of Criminal Procedure lays down that remand prisoners may communicate in writing and orally with their lawyers.
32. The first sentence of Article 148 § 2 of the Code of Criminal Procedure reads as follows:
“If the accused is in custody and the investigation concerns an offence under Article 129a of the Criminal Code [membership of a terrorist organisation], access to written or other documents must be refused unless the sender agrees to their first being examined by a judge ... In cases in which correspondence has to be monitored ... adequate measures shall be taken to avoid written or other documents being handed over at meetings between prisoners and their lawyers.”
33. The purpose of the exception set out in Article 148 § 2 of the Code of Criminal Procedure is to prevent prisoners suspected of an offence under Article 129a of the Criminal Code from continuing to work for the terrorist organisation to which it is alleged they belong and contributing to its survival (Federal Court of Justice, Neue Strafrechtzeitschrift no. 84, p. 177).
34. Article 148a of the Code of Criminal Procedure provides that the judge with responsibility for such surveillance measures is the judge of the district court where the prison is located and that he or she shall not have, and may not be assigned, conduct of the investigation and shall keep the information thus obtained confidential, unless it concerns a serious or very serious offence, such as an offence under Article 138 §§ 1 or 2 of the Criminal Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-120960
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF CONSTANTIN TUDOR v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1975. He is currently detained in Rahova Prison.
7. By a final judgment of 28 September 2004 the Court of Cassation sentenced the applicant to twelve years’ imprisonment for human trafficking.
8. On 20 February 2008 the applicant was detained by the Bucharest Police Department after being returned from Turkey, where he had fled in 2002, and started serving his prison sentence.
9. In his initial letter addressed to the Court on 28 April 2009 the applicant expressly stated that his rights guaranteed by Article 3 of the Convention had been breached in so far as, inter alia, he had been quartered (cazat) in Jilava Prison, a penitentiary notorious as a place of torture and physical and mental terror because of inhuman and degrading detention conditions. He further contended that his assertions had already been proved before the Court in the case of Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and that they were supported by successive reports of the European Committee for the Prevention of Torture (CPT).
10. The applicant was detained in Jilava Prison between 10 March and 25 September 2008, as well as between 2 October and 2 December 2008.
11. Between the second part of March and the first part of June 2008 the applicant was detained in cell no. 614 measuring 42.75 sq. m, which he shared with between 19 and 20 other inmates.
12. Between the second part of June and the first part of September 2008 the applicant was detained in cell no. 502 measuring 13.50 sq. m, which he shared with between 3 and 6 other inmates.
13. For the last two days of September 2008, as well as between the second part of November and the first day of December 2008, the applicant was detained in cell no. 611 measuring 42.39 sq. m. The occupancy rate of the cell was 5 inmates for the last two days of September 2008 and between 7 and 10 for the remainder of the period spent by the applicant in Jilava Prison.
14. In respect of the hygiene conditions, the Government submitted that every year the prison administration signed contracts for rodent and pest control with specialised companies. Disinfection of the detention rooms was carried out at least once every three months. Moreover, the quality of the drinking water was examined regularly by the prison administration with the aid of a specialised laboratory. Furthermore, the applicant had been provided with a special food diet approved by the prison doctor, which was prepared and served in accordance with the required hygiene conditions. The food was fresh and of good quality.
15. Since 2006 significant rehabilitation work had been carried out by the prison authorities. The heating network, the sewerage and the water supply systems had been repaired. Some sections of the prison and detention rooms had also been modernised.
16. On 23 September 2000 and 9 September 2002 the applicant was hospitalised in the psychiatric unit of the Săpunari Hospital and was diagnosed with organic personality syndrome. He was prescribed treatment for his condition.
17. On an unspecified date in 2006 the applicant was diagnosed with spinal disc hernia. The examining doctor recommended that the applicant undergo surgery.
18. Between 13 March and 2 December 2008 the applicant was subjected to several other medical examinations – both in prison and in civilian hospitals – that confirmed the above-mentioned diagnoses, and he was prescribed treatment with various medicines. The prison authorities provided him with the prescribed treatment for his organic personality syndrome and his spinal disc hernia.
19. On 21 August 2008 the applicant filed a request with the prison doctor to be allowed to be examined in connection with his spinal disc hernia at the A.D. private clinic at his own expense.
20. On 1 September 2008 the doctor, M.M., granted the applicant’s request and indicated that he was scheduled for a nuclear magnetic resonance (NMR) scan at the E. private clinic.
21. On an unspecified date the applicant was taken to the E. clinic for the NMR, but the scan was not carried out because of his excessive weight, which could have damaged the machine.
22. On 22 September 2008 the applicant was taken to the H. private clinic, where the NMR scan was carried out free of charge.
23. On 6 October 2008 the applicant was examined in respect of his spinal disc hernia by doctor G.V., a specialist neurosurgeon from Bagdasar Hospital in Bucharest, and was recommended treatment with Tramadol, Famotidina and Movalis. An appointment was made for a re-examination of his condition.
24. On 31 October 2008 doctor G.V. re-examined the applicant in respect of his spinal disc hernia. He recommended that the treatment with Tramadol and Famotidina be continued and that the applicant be monitored in the infirmary prior to his surgery.
25. According to information submitted by the Government on 12 December 2008, the applicant refused to be admitted to the Rahova prison infirmary and on 15 December 2008 the Bagdasar Hospital informed the prison authorities by telephone that the applicant’s surgery had been temporarily postponed.
26. On 19 December 2008 the applicant’s surgery was re-scheduled by doctor G.V. for 9 March 2009.
27. According to the information submitted by the Government, on an unspecified date the applicant informed the prison doctor that his family had contacted doctor G.V. and asked him to re-schedule his surgery for 24 June 2009. The applicant’s statement was confirmed by doctor G.V. by telephone.
28. On 16 April 2009 the applicant was re-examined by doctor G.V. in respect of his spinal disc hernia. He was recommended treatment for twenty-one days and his surgery was scheduled for 24 June 2009.
29. According to the applicant’s medical file, his medical condition continued to be examined and monitored by specialist doctors in private and prison hospitals.
30. On 29 June 2009 the applicant was taken to Rahova Prison Hospital for a neurosurgical examination. However, the neurosurgeon was absent and his examination had to be re-scheduled for a later date.
31. On 14 July 2009 the applicant was examined by doctor C.S., a specialist neurologist working for the Bucharest Prison Hospital. According to her report, the applicant was suffering from lumbar pain. She prescribed treatment and recommended an urgent neurosurgical examination in respect of his condition.
32. Between 13 August and 14 December 2009 the applicant’s medical condition was regularly examined in both prison and private hospitals. On 24 August and 30 September 2009 the medical reports produced in respect of his conditions recorded that the applicant’s general state of health was good.
33. On 14 January 2010 the applicant was temporarily released from prison, as required by the final judgment of 11 December 2008 (see paragraph 43, below), and in March 2010 he was operated on for spinal disc hernia.
34. On 15 April 2010 the applicant returned to prison after his spinal disc hernia surgery.
35. On 26 April 2010 the Mina Minovici Forensic Medical Institute produced a forensic report in respect of the applicant’s medical condition. It concluded that after the spinal disc hernia the applicant needed physiotherapy for his recovery, which could be provided in prison hospitals.
36. Between April 2010 and 16 December 2010 the applicant’s medical conditions were monitored regularly by prison hospitals. According to the medical records drawn up on 16 December 2010 by the Rahova Prison doctor, his general medical condition was good.
37. On 3 August 2010 the applicant refused to be hospitalised in Rahova Prison Hospital and he requested to be taken to civilian hospitals for his post-surgical recovery treatment.
38. In a letter of 13 January 2011 the Rahova Prison authorities informed the Government that the applicant had been provided free of charge with the medical treatment prescribed by doctors for the entire time he was detained in that prison.
39. On 13 October 2008 the applicant lodged a complaint with the judge responsible for the execution of prison sentences in respect of the conditions of detention in Jilava Prison and a lack of adequate medical care. The applicant also claimed compensation. He complained of inhuman and degrading treatment because: (i) the prison cells were infested with vermin; (ii) the quality of the food and drinking water was poor; (iii) proper facilities for personal and food hygiene were lacking; and (iv) the cells lacked furniture and the general living conditions of the detainees were poor. On 15 October 2010, at the hearing before the judge responsible for the execution of prison sentences, the applicant stated that his complaint concerned a lack of medical care for his spinal disc hernia and insufficient medical treatment for his organic personality syndrome.
40. By a decision of 23 October 2008 the judge responsible for the execution of sentences dismissed the applicant’s complaint. The judge held that the Jilava Prison authorities had taken the necessary steps to combat the vermin infestation of the cells as they had signed pest control contracts with a number of companies and the cells were disinfected at least once every three months. Moreover, the judge held that the applicant’s complaints concerning the poor quality of the food and drinking water and the lack of food and personal hygiene facilities were unfounded, as: (i) the food at the prison was prepared and stored on the basis of guidelines set by the Ministry of Justice; (ii) the quality of the drinking water had been found to comply with legal requirements according to an expert report of the Apa Nova water testing laboratory; (iii) the applicant had access to the prison facilities necessary to ensure his personal hygiene; and (iv) he was under an obligation to clean and air his room in accordance with the daily schedule for detainees. The judge also held that there was no evidence that the general living conditions for detainees as provided for in Law No. 275/2006 had not been met in the applicant’s case. Finally, the judge held that the applicant was being provided with adequate medical care. He was kept under medical surveillance, was prescribed the medical treatment that the doctors considered appropriate for his medical condition and, in addition, his request to be treated at A.D.’s natural private clinic at his own expense had been examined according to the relevant legal provisions. The judge also rejected the applicant’s claim for compensation, finding that the applicant could not bring a claim for compensation on the basis of the procedure provided for by Law No. 275/2006 and that he therefore had to bring separate proceedings seeking compensation. The applicant appealed against the judge’s decision.
41. On an unspecified date in 2008 the applicant brought proceedings in the Bucharest County Court seeking temporary release from prison on medical grounds. The domestic court ordered an expert forensic report in respect of the applicant’s medical condition.
42. According to the expert forensic report produced by the Mina Minovici Medical Forensic Institute on 28 November 2008, the applicant was suffering from, inter alia, a spinal disc hernia which required surgery and specialised post-surgery recovery. Consequently, the forensic expert report recommended the discontinuance of the applicant’s prison sentence for three months on the ground that the applicant’s spinal disc hernia could not be operated on in a prison hospital.
43. By a final judgment of 11 December 2008 the Bucharest County Court allowed the applicant’s action seeking his temporary release from prison on medical grounds and ordered his immediate release.
44. On 12 December 2008 the Rahova Prison authorities informed the Bucharest District Court that the applicant could not be released as the Bucharest Court of Appeal had issued a separate arrest warrant in his name on 17 December 2005 in a separate set of proceedings concerning human trafficking.
45. On 19 December 2008 the Bucharest County Court informed the Rahova Prison authorities that the applicant’s pre-trial detention on the basis of the arrest warrant of 17 December 2005 had been extended by an interlocutory judgment of 18 December 2008. It does not appear from the evidence in the file that the applicant appealed against the interlocutory judgment of 18 December 2008.
46. By a final judgment of 14 January 2009 the Bucharest District Court dismissed the applicant’s appeal against the decision of the judge responsible for the execution of sentences dated 23 October 2008, upholding the decision and finding that there was no evidence that the applicant’s rights as a detainee had been breached.
47. On 19 February 2009 the applicant was subjected to a psychiatric evaluation in the Jilava Prison Hospital. The medical report confirmed that the applicant’s organic personality syndrome had improved.
48. By final interlocutory judgments of 13 March, 29 May, 3 June, 29 July, 24 August, 12 November and 15 December 2009 the Bucharest Court of Appeal dismissed the applicant’s actions seeking the discontinuance of the pre-trial detention ordered against him on 17 December 2005. By a final interlocutory judgment of 29 May 2009 the Bucharest Court of Appeal also dismissed the applicant’s request for the suspension of the proceedings on medical grounds. Neither of the parties has provided the Court with the reasoning part of the interlocutory judgments delivered by the Bucharest Court of Appeal.
49. On 13 January 2010 the Bucharest Court of Appeal informed the Rahova Prison authorities that following its interlocutory judgment delivered on the same day, the applicant’s pre-trial detention ordered on the basis of the arrest warrant issued on 17 December 2005 had been revoked and the applicant had been placed under an obligation not to leave town.
50. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009).
51. Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) on prison conditions are given in the case of Bragadireanu v. Romania ( no. 22088/04, §§ 73-75, 6 December 2007).
52. The relevant parts of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the detention conditions in Jilava Prison read as follows:
“... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bed bugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses. No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3034.81 sq. m, while the population was 1460, meaning 2.08 sq. m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-98439
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BIELAJ v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3-d
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1965 and lives in Kyiv.
6. The applicant was arrested on 30 August 1992 on suspicion of having committed armed robbery at the market place in Lublin on 29 August 1992. On the same date he was heard as a suspect in the presence of an interpreter. On 31 August 1992 a police officer issued a decision to institute an informed of the charges against him in the presence of an interpreter.
7. On 9 September 1992 the applicant lodged an appeal, in Russian, against the decision to remand him in custody. It was translated into Polish and dismissed by the Lublin Regional Court on 15 September 1992.
8. On 14 September 1992 the applicant asked for “the opportunity to see a legal-aid lawyer”. On 5 October 1992 the public prosecutor informed him that there was no legal basis for granting legal aid to suspects of foreign citizenship. On 30 September 1992 the applicant requested, in Polish, to be released. His request was dismissed on 12 October 1992.
9. On an unspecified date during the investigation L.S., the victim of the offence, was questioned by the police. He submitted a detailed description of the applicant's conduct during the material events.
10. The applicant was questioned during the investigation. He denied all the charges against him. He explained that L.S. had given him money and requested him to buy alcohol. Later on, L.S. wanted his money back. The latter exchange was seen by witnesses who had wrongly interpreted it as proof that he had previously exerted pressure with use of violence on L.S. in order to get money from him.
11. On 2 November 1992 the prosecutor appointed an interpreter for the purposes of the final examination of the case file by the applicant. On the same date the applicant read the case file in the interpreter's presence. On 6 November 1992 the investigation was closed. On 25 November 1992 a bill of indictment against the applicant was transmitted to the Lublin Regional Court. The applicant was charged with armed robbery. On 21 January 1993 the bill of indictment was remitted to the prosecuting authorities, the court having requested that it be translated into Russian. On 26 January 1993 the bill of indictment together with its translation was again submitted to the court. On 28 January 1993 the presiding judge ordered that the bill of indictment in Polish and Russian be served on the applicant.
12. On 10 February 1993 the presiding judge fixed the date of the first hearing in the case and appointed a legal-aid lawyer for the applicant. The first hearing was held on 5 May 1993 in the presence of the applicant, his legal-aid lawyer and the interpreter. During that hearing the applicant stated as follows: “I have learned Polish by reading books and watching TV. I have good linguistic abilities. I also speak some German and some English”.
13. In May 1993, L. S., the victim of the offence, who was also a Ukrainian national, living at that time in Ukraine, declared in writing that “he [did] not request that the prosecution be continued and [did] not intend to appear before the court in order to testify against the applicant”.
14. On 28 May 1993 the court held a second hearing in the case, in the presence of the applicant, his legal-aid lawyer and the interpreter. The court read out the testimony given by L.S. during the investigation, heard oral evidence from two other eyewitnesses to the incident, W.K. and M.C., who had also informed the police of it, and from two police officers who had arrested the applicant.
15. By a judgment of 31 May 1993 the Regional Court in Lublin found the applicant guilty as charged and sentenced him to five years' imprisonment. The judgment was delivered in the presence of the applicant, his legal-aid lawyer and the interpreter.
16. Following an appeal submitted by the applicant's legal-aid lawyer, on 8 October 1993 the Lublin Court of Appeal held an appeal hearing in the presence of that lawyer. The court read out the written declaration of the victim, referred to above (see paragraph 13) and noted that the first-instance court had entirely failed to address it and to examine whether it could have been relevant for the finding of the applicant's guilt. It further noted that the victim's wife, who had seen the alleged robbery, had not been questioned. Moreover, her two friends had also been present at the scene of the offence. The court further noted that another ground for appeal, namely that the applicant had been refused legal aid at the pre-trial stage of the proceedings, was ill-founded, as the applicant had not shown how it had influenced the outcome of the proceedings.
The appellate court quashed the first-instance judgment and remitted the case for re-examination to the Lublin Regional Court.
17. By a decision of 14 December 1993 the Lublin Regional Court remitted the case to the Lublin District Prosecution Office. The prosecution was ordered to pursue an investigation in order to rectify the shortcomings of the investigation which had been conducted hitherto. In particular, the court ordered the prosecution to question the victim again, and to question the victim's wife and her two friends who were present tempore criminis at the market place. The court further ordered the prosecuting authorities to confront the victim and his wife with eyewitnesses W.K. and M.C. This decision was translated into Russian. On 30 December 1993 the prosecuting authorities' appeal against this decision was dismissed.
18. Subsequently, on 25 January and 29 April 1994 the applicant's detention was extended. On 8 June 1994 the applicant was released on bail. All the relevant decisions were translated into Russian.
19. On 18 October 1994 the prosecutor appointed an interpreter in order to translate into Russian all evidence collected during the investigation conducted in 1994 (the witnesses' testimonies and the decision to terminate the investigation). On 28 October 1994 a new bill of indictment was submitted to the Lublin Regional Court together with its Russian translation. The prosecuting authorities relied on the evidence given by the two eyewitnesses, by two police officers, and on the evidence given by L.S. during the first round of the investigation. They further noted that they had tried several times to contact L.S. and his wife with a view to questioning them, to no avail.
20. On 27 June 1995 the Lublin Regional Court summoned the applicant, the victim and his wife to a hearing to be held before that court. All summons were sent through the intermediary of the Ministry of Justice, by way of international judicial assistance. At a hearing fixed for 23 October 1995 the applicant was present together with his legal-aid lawyer and the interpreter. The victim and his wife failed to attend the hearing. The court did not obtain any confirmation as to whether they had been properly summoned by the Ukrainian authorities. As both parties to the proceedings requested that the victim be heard before the court, it adjourned the hearing until 15 April 1996. The victim and his wife, though properly summoned, failed to attend that hearing. The court adjourned the hearing until 10 June 1996.
21. On that date, again faced with the absence of the victim and his wife, both parties to the proceedings requested that the victim and his wife be questioned by way of international judicial assistance by a court in Łuck in Ukraine. The Lublin Regional Court allowed their request, adjourned the hearing and requested the City Court in Łuck for assistance in obtaining the testimony of the victim and his wife. In its request the court also emphasised that the applicant and his legal-aid lawyer should be informed by the City Court in Łuck of the date when the victim and his wife would be questioned before that court. It further indicated the addresses of the applicant and his defence counsel for the purpose of sending them summons for questioning. The applicant did not contest the list of questions put to L.S. and did not indicate that any further questions should be asked in order
A list of questions to be put to the witnesses was appended to the request, which was subsequently translated into Russian and sent to the Ukrainian authorities through the Ministry of Justice.
22. On 20 February 1997 the victim testified before the City Court in Łuck. The record of the hearing indicates that the Ukrainian court had not summoned either the applicant or his legal-aid lawyer to that session. The victim upheld his initial statement, made during the investigation, that the applicant had robbed him (see paragraph 9 above). He further stated that he had withdrawn his previous incriminating statements (see paragraph 13 above) at the applicant's wife's request. He further clarified by way of explanation that “he did not want to ruin his relationship with the couple”. The City Court in Łuck did not question other persons requested by the Lublin Regional Court. The testimony of the victim was later forwarded to the Polish authorities and translated into Polish.
23. On 18 November 1997 the Lublin Regional Court stayed the proceedings and requested the Ukrainian authorities to proceed with the examination of the case. On 25 August 1998 the Ukrainian authorities refused to continue the prosecution. On 19 October 1999 the Lublin Regional Court resumed the proceedings.
24. The subsequent hearing was held on 23 February 2000 in the presence of the applicant, his legal-aid lawyer and the interpreter. The parties again requested that the victim be examined at the hearing. The court adjourned the hearing and decided to summon once again the victim and his wife. The witnesses, duly summoned, failed to attend the subsequent hearings, held on 9 May and 15 June 2000. W.K. attended the hearing on 9 May and was questioned.
On the latter date, the parties did not object to the victim's testimony being read out from the investigation file. The court closed the hearings, having regard to the fact that all attempts to obtain direct evidence from the victim and his wife before that court had failed.
25. By a judgment of 16 June 2000 the Lublin Regional Court found the applicant guilty as charged and sentenced him to three years' imprisonment and a fine.
The court established that on 29 June 1992 the applicant and the victim, who did not know each other, had been selling merchandise at the marketplace in Lublin. The written grounds of the judgment, in so far as relevant, read as follows:
After trading hours had ended, when L.S. and the women who accompanied him were walking out of the market place, the accused came up and demanded that he give him PLZ 500,000. L. S. refused saying that he did not have that amount of money (L.S. testimony, pp. 15-17, 484-486). In reaction, the accused put a knife first to the victim's neck and then to his stomach and told him that he would beat up him and his wife up. As the accused was under the influence of alcohol and behaved in a vulgar and aggressive manner, his threats made L.S. fear for his and his wife's life. He gave PLZ 140,000 to him (testimony of L.S., page 16, of W.K, page 14, of M.C., page 13).
Later on that evening L.S. and his wife went to the train station and saw the accused there.
L.S. and a man named W. decided [then] to try to take the money from [the accused]. They approached him and started to talk to him. The discussion ended with [the accused's refusal] and a scuffle; [the accused] hit L.S. in the face. That incident was observed, from the very beginning, by M.C. and W.K. [also present at the train station] who decided to inform the police. After their intervention two uniformed police officers arrived. Seeing them, the accused started to run away. He was apprehended after a while. He behaved aggressively and tried to get away. The police officers handcuffed him and took him to the police station (testimony of W.K., p. 14, 182-183, 321; M. C., p.13, 184; J.S., p. 45, 157; A.M., pp. 44, 156).
The accused denied that he had committed the offence [...] He explained that [on the material date] after selling spare parts, he had been drinking alcohol at the market place with other traders (p. 19, 27-28 153-154, 374). He had met L.S. there and had had a quarrel with him; however, he had stated that they had not been involved in a scuffle and denied that he had threatened him at knifepoint; he had only insulted him (pp. 27-28, 153-154, 185). He also stated that he had proposed that they had a drink to smooth things over (...) L.S. had not wanted to go for a drink but had given him money of his own free will for the purchase of alcohol. Some time later, at the train station, L.S. along with another man had demanded his money back, saying that if he refused things would turn bad for the accused (pp. 154, 541). This demand had so annoyed the accused that he had caught L.S.'s shirt and shaken him violently, but, as he stated, he had had no intention of getting into a fight. (p. 154). ...
The court refused to consider the explanations given by the accused as credible as they were incompatible with L.S.'s deposition made during the investigation. ... After the accused had been apprehended, L.S. had recognised him as the person who had attacked him and had identified some of the banknotes which he had had with him.
It is true that on 10 June 1993 L.S. made a written statement that all charges against the accused were erroneous and were caused by a succession of misunderstandings and that the accused had neither threatened the victim nor his wife, nor used a knife against L.S. (pp. 230). However, when questioned before the Łuck Court, that witness had convincingly explained the motives which had prompted him to make this declaration, saying that he had made it at the request of the accused's wife and his colleagues as he had not wanted to jeopardise his relationship with the couple (p. 486). On the same occasion he made a deposition which had fully confirmed his deposition made on 30 August 1992 (pp. 484-485, 540-541). [L.S.] admitted that the accused had threatened him and his wife and that he had been using some sort of instrument at that time, but did not remember whether it had indeed been a knife. He emphasised that he had given money to the applicant under threat.
The court considers that L.S.'s statements were credible and is of the view that his declaration of 10 June 1993 had been made as a result of pressure exerted on him by the family and friends of the accused. The testimony of that witness is clear, consistent and coherent. (...) It should be emphasised that before the incident L.S. had never met the accused. He did not therefore have any grounds on which to make a false accusation against the accused because he had held a grudge against him.
L.S. recognised the accused immediately after his apprehension by the police; he also identified some banknotes which the accused had on him as the same which the accused had previously taken from him. He tried to describe the material events in an objective manner, without over-dramatising or distorting them. It is also of relevance for the assessment of his credibility that the police were informed of the incident by objective by-standers.
The defence, in its final oral submissions to the court, disregarded these factors relating to L.S.'s credibility. The defence lawyer focused on the fact that L.S. had not been questioned by the trial court and on the procedural shortcoming committed by the Łuck Court in that it had failed to summon the applicant and his lawyer to the questioning before that court. Defence counsel stressed the level of education and post held by the accused which, in his view, indicated that he could not have committed the offence at issue.
The court went on to explain the grounds why it did not consider that the applicant's denial of having committed the offence was credible. It went on to say:
The court considers that it is of paramount importance that testimony given by the victim has been confirmed by depositions made by the eyewitnesses to the incident, M.C. and W.K. W.K. was standing at the market place just 1 – 1.5 metres away from the victim (p. 183) and he saw the incident clearly. He confirmed the fact that the accused had put a knife to the victim's throat and demanded money from him, threatening him with murder and that he would rape his wife. W.K. saw the victim give PLZ 140,000 to the accused (p. 14).
When W.K. was questioned at the hearing held at the previous trial (p. 182), he had stated categorically and unequivocally: “I did not have the slightest doubt as to who the perpetrator was and now, looking at the accused, I don't have any doubt that it was him who had committed the offence in the circumstances which I have described” (p. 182).
When that witness [W.K.] was heard again, at the hearing of 9 May 2000, he did not, due to the lapse of time, remember the exact details of the incident; however, he confirmed his earlier deposition.
Witness M.C. also confirmed the version of events given by the victim. Questioned immediately after the incident, he had stated that the accused had threatened the victim at knifepoint and with murdering him and raping his wife, and had demanded PLZ 500,000 from him. L.S. had given him PLZ 140,000 and Jurij Biełaj took the money (p. 13). When [that witness] was questioned at the hearing held on 28 May 1993, he had confirmed the veracity of his earlier deposition, even though he did not remember on that occasion whether it had been the accused who had subsequently been apprehended by the police at the train station (pp. 183-184).
When the trial in the present case was conducted again, attempts to serve the summons on that witness [M.C.] so that he could be questioned again failed.
It should be stressed that it was as a result of the intervention of M.C. and W.K. that the accused was apprehended by the police. Neither knew the accused or the victim before; hence they could not have had any reasons for falsely accusing him.
Neither the accused nor his lawyer made any concrete objections as to the veracity of the depositions made by these two witnesses.
The court concluded that the evidence in the case, seen as a whole, allowed the conclusion that the applicant was guilty as charged.
26. On 28 September 2000 the applicant's legal-aid lawyer lodged an appeal against this judgment. He submitted that the court had based its finding of guilt on testimony given by the victim L.S., despite the fact that he had never been heard by the Polish court and the Łuck court had failed to summon the applicant and his lawyer to the questioning. It had also failed to question L.S.'s wife. This rendered the conviction unsafe.
27. A hearing before the appellate court was held on 9 November 2000 in the presence of the applicant and his lawyer. The court upheld the firstinstance judgment. It stressed, inter alia, that the Lublin Regional Court had expressly requested the Ukrainian authorities to summon them to that hearing (see paragraph 20 above). The first-instance court could not be held responsible for the Ukrainian authorities' failure to summon the applicant and his lawyer for the questioning of witnesses before the Łuck City Court, as requested. Moreover, the Lublin Regional Court had afterwards summoned both L.S. and his wife to the hearings to be held on 9 May and 15 July 2000, to no avail. Furthermore, the applicant's lawyer had acquiesced to the prosecutor's request that the depositions of witnesses who had not been questioned during the trial be read out from the file.
28. On 10 January 2001 the applicant's legal-aid lawyer lodged a cassation appeal with the Supreme Court. It was argued that the hearing before the appellate court was unfair in that the applicant had not been assisted by an interpreter. He further repeated the arguments submitted in his appeal against the first-instance judgment.
The appeal itself, a subsequent order by which it was accepted for examination, and the prosecutor's response, were translated into Russian.
29. On 3 April 2003 the Supreme Court held the cassation hearing in the presence of the applicant's legal-aid lawyer. It quashed the judgment of 9 November 2000 and remitted the case for re-examination to that court. It observed that the absence of an interpreter at the hearing held on 9 November 2000 constituted a serious procedural shortcoming and limited the applicant's procedural rights. It further noted that the remaining arguments submitted by the applicant were merely a re-statement of the grounds of appeal which had already been examined by the appellate court.
30. On 17 July 2003 the Lublin Court of Appeal held a hearing in the case in the presence of the applicant, his legal-aid lawyer and an interpreter. On 24 July 2003 the court delivered its judgment in the presence of an interpreter. It upheld the first-instance judgment. The court stated that the failure of the Łuck City Court to comply with the terms of the international judicial assistance request could not, by itself, justify the discontinuation of the criminal proceedings against the applicant. Nor should it have prevented the Lublin Regional Court from reading out L.S.'s deposition before that court. The applicant had been aware of the questions to be put to L.S. before the Łuck City Court. He had not contested them and had not requested that they be supplemented by any other questions. Under Article 343 § 1 of the Code of Criminal Procedure, the parties had a right to participate in the taking of evidence carried out by a judge or court other than the one examining the merits of a case, but their participation was by no means mandatory. The first-instance court had repeatedly taken steps with a view to examining both L.S. and his wife in the applicant's presence, in conformity with the recommendations formulated by the Lublin Court of Appeal on 8 October 1993. However, as all these efforts had failed, that court was justified in considering that it had been ultimately impossible to have this evidence taken before that court in adversarial proceedings.
In so far as the applicant relied on lack of legal aid during the investigation held in 1992 and 1993, the Court of Appeal noted that it was only after the 1998 Code had entered into force that a grant of legal aid to a foreign citizen became possible. In any event, after the entry into force of that Code the case-law of the Supreme Court had already affirmed that lack of legal aid at the pre-trial stage of proceedings could serve as a basis for quashing a judgment only when it had not been subsequently rectified by a grant of legal aid at the judicial stage of the proceedings.
31. On 25 November 2003 the applicant's defence counsel lodged a cassation appeal against this judgment, essentially reiterating his previous arguments.
32. On 23 September 2004 the Supreme Court held a hearing in the presence of the applicant's legal-aid lawyer. It pronounced its decision to dismiss the cassation appeal as manifestly ill-founded at an open court session. Subsequently, the judge rapporteur orally presented the main reasons justifying that decision.
33. Until 1 January 1998 the Code of Criminal Procedure of 1969 (“the 1969 Code”) governed the conduct of criminal proceedings. It was replaced by a code adopted in 1998 (“the 1998 Code”).
34. Under Article 6 of the Transitional Provisions to the 1998 Code, that Code was applicable to proceedings which had been instituted before its entry into force.
Article 4 § 1 of the 1969 Code provided:
“Judges shall rule on the basis of their conviction deriving from evidence obtained and founded on their free assessment of evidence [and they shall] draw on knowledge and life experience.”
Article 337 provided, in its relevant part:
“1. If a witness has without reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared on the ground of irremovable obstacles or if the president of the court has declined to summon him pursuant to Article 296 § 2 [because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], the records of his previous statements may be read out, [regardless of whether they] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law.
2. In the circumstances referred to in paragraph 1, the records of evidence that a witness has given when heard as an accused may also be read out.”
Article 316 § 3 of the 1998 Code reads as follows:
“If there is a risk that the witness cannot be heard at the hearing, a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court.”
35. Article 389 of the Code reads:
“§ 1. If the accused refuses to give his explanations to the court or if his explanations are manifestly different from his or her previous ones, or if he declares that he or she does not remember certain circumstances, the minutes of the explanations given previously during the investigation or at the trial stage in the same or another criminal case can be read out [by the court] in their relevant parts.
§ 2. After the minutes have been read out, the president shall request the accused to take a position in respect of their content and the contradictions between them and his or her later explanations.”
36. Article 391 of the 1998 Code provides as follows:
“1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him pursuant to Article 333§2 [because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law.
2. In the circumstances referred to in paragraph 1 [...] the records of evidence that a witness has given when heard as an accused may also be read out.”
37. Article 393 of the Code provides that the following documents can be read out at a trial: minutes of an on-the-spot examination and post-mortem, search and retaining of objects for evidentiary purposes; opinions given by experts and institutions, criminal records and all official documents submitted to the file during the investigation and trial. Notes concerning measures in respect of which official minutes should have been prepared cannot be so read out. A request that a criminal offence has been committed can be read out; however, it can serve only as proof of who submitted this request, when and in respect of what offence.
38. Article 585 of the Code governs the provision of international judicial assistance. It provides, in so far as relevant:
“The measures necessary in criminal proceedings may be conducted by way of judicial assistance, particularly the following:
1) service of documents on persons abroad or on agencies having their headquarters abroad,
2) taking depositions from persons as accused, witnesses, or experts ...”
39. According to Article 587:
“The official records of inspections, examinations of persons as accused persons, witnesses or experts, or records of other evidentiary measures prepared upon a request from a Polish court or State prosecutor, by the courts or State prosecutors of foreign countries or by agencies acting under their supervision, may be read aloud at the hearing according to the principles prescribed in Articles 389, 391 and 393. This may be done provided that the manner of carrying these measures does not conflict with the principles of the legal order of the Republic of Poland.”
40. Under the 1998 Code a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against a final judgment of the appellate court which has terminated the proceedings. The cassation appeal has to be drafted and signed by a lawyer.
41. A cassation appeal can be lodged only on the grounds referred to in Article 439 of the Code. These grounds include certain procedural shortcomings which justify the quashing of a first-instance decision, regardless of whether they are invoked by the party challenging such a decision (for example, wrong composition of the court, lack of legal assistance in cases where such assistance was compulsory, violation of the rules governing jurisdiction of criminal courts, certain breaches of defence rights). A cassation appeal can also be lodged on the ground of a flagrant breach of law if such a breach negatively affected the judicial decision under appeal.
42. Article 530 of the Code provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied, and to refuse to accept the appeal if this is not the case. If the appeal is admissible, it is forwarded to the Supreme Court.
43. Pursuant to Article 535 of the Code, as amended on 20 July 2000 to take effect from 1 September 2000, the Supreme Court shall consider a cassation appeal against a judgment at a hearing. However, it is open to the Supreme Court to dismiss such an appeal at a session held in camera if it considers that it is manifestly ill-founded.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-110986
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF IDALOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: András Sajó;Anatoly Kovler;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen
TEXT: 8. The applicant was born in 1967 and is currently serving a prison sentence in correctional facility no. IK-19 in Tavda, in the Sverdlovsk region.
9. On 11 June 1999 the applicant was arrested on suspicion of abduction involving an organised criminal group and he was placed in detention. Three days later, the relevant prosecutor ordered his detention pending trial. On 18 June 1999 the applicant was officially charged.
10. On 6 January 2000 he was further charged with abduction, extortion, and illegal acquisition and possession of firearms and drugs.
11. On 10 March 2000 the case file was forwarded to the Meshchanskiy District Court of Moscow. The District Court returned the case file to the prosecutor’s office, noting that the bill of indictment was not translated fully into the Chechen language.
12. On 7 April 2000 the prosecutor’s office forwarded the amended bill of indictment and the case file to the District Court, which received it on 10 April 2000. A week later, it was transferred to the Kuntsevskiy District Court of Moscow.
13. The first trial hearing was scheduled for 22 May 2000, but was adjourned owing to the failure of the other defendants’ counsel to appear in court, as was the following hearing, scheduled for 16 June 2000. Of three subsequent hearings, two were adjourned at the applicant’s request and one owing to the failure of the victim and witnesses to appear in court.
14. By a decision of 12 September 2000 the Kuntsevskiy District Court remitted the case to the Moscow Prosecutor’s Office for an additional investigation.
15. On 9 July 2001 the case file was sent to the Khamovnicheskiy District Court of Moscow for trial. The hearing scheduled for 24 August 2001 was adjourned owing to the failure of the witnesses and the applicant’s counsel to appear in court. Of eight subsequent hearings scheduled between 24 August 2001 and 20 May 2002, two were adjourned because the applicant, who in the meantime had been released on bail (on 6 July 2001), failed to appear in court, three owing to the same failure on the part of the defendants, their counsel and certain witnesses and three because the presiding judge was involved in the examination of another case.
16. By a decision of 21 May 2002 the Khamovnicheskiy District Court remitted the case to the Moscow Prosecutor’s Office for further investigation. On 24 July 2002, upon an appeal by the prosecutor, the Moscow City Court quashed that decision and remitted the case to the Khamovnicheskiy District Court.
17. The first hearing after the case file was returned to the Khamovnicheskiy District Court was scheduled for 13 September 2002. It did not take place because the presiding judge was involved in the examination of another case. Of twenty-three subsequent hearings scheduled between 13 September 2002 and 3 November 2003 (the last court hearing), two did not take place because the judge was, once again, involved in the examination of another case and four because either the prosecutor or some of the defendants were ill. Requests by the parties – five by the defence, including the applicant’s counsel, and one by the prosecutor – caused another six adjournments. Nine hearings were postponed owing to the failure of several participants to appear in court. The applicant, who was back in custody at the time, did not appear on two occasions. Another adjournment occurred because the applicant’s lawyer left the courtroom without permission. One hearing was postponed for reasons not evident from the file. In February 2003 the court set aside the cases of two defendants for independent assessment and proceeded with the examination of the applicant’s case. By a decision of 29 August 2003 the court disjoined the cases against two other co-defendants.
18. All the above hearings concerned procedural issues. The first hearing on the merits of the case took place on 17 September 2003. At the beginning of this hearing the applicant repeatedly challenged the presiding judge by questioning her impartiality. The judge ordered that he be removed from the courtroom for improper behaviour. The applicant attempted to dismiss his lawyer. The judge, however, refused to recognise the dismissal and the applicant’s counsel continued to represent him. On 23 September 2003, on 4, 30 and 31 October 2003 and on 3 November 2003 the court examined witnesses and studied the documents in the file. After the completion of the evidence and when the prosecutor and the applicant’s counsel had made their submissions, the applicant was readmitted to the courtroom to make his final statement.
19. By a judgment of 24 November 2003 the Khamovnicheskiy District Court convicted the applicant of abduction, extortion and illegal acquisition and possession of firearms and drugs. It sentenced him to fifteen years’ imprisonment. The court further ordered the repayment of the bail to the applicant’s wife (see paragraph 29 below).
20. On 4 December 2003 the applicant’s counsel lodged an appeal against the trial court’s judgment. By a judgment of 18 May 2004 the Moscow City Court allowed the appeal in respect of the charge of illegal acquisition and possession of drugs for lack of evidence. It upheld in substance the conviction in respect of the other charges and reduced the sentence to ten years’ imprisonment.
21. By a decision of 27 November 2007 the Vyaznikovskiy Town Court of the Vladimir Region released the applicant on parole.
22. It appears that in July 2008 the applicant was again arrested on suspicion of having committed a criminal offence. He was subsequently convicted and is currently serving a prison sentence.
23. Following the applicant’s arrest on 11 June 1999 (see paragraph 9 above), on 14 June 1999 the chief investigator authorised his detention pending investigation. In particular, the investigator noted that he had had regard
“...to the fact that [the applicant] is suspected of having committed an extremely serious offence entailing a custodial sentence, and that, if released, he might abscond and, as a result, interfere with the establishment of the truth, or commit another offence.”
24. By a decision of 10 August 1999 the prosecution authorities extended the detention of the applicant and his five co-accused until 11 September 1999. The grounds invoked in the extension order were the gravity of the charges against them and the potential risks of their absconding, obstructing the course of justice, putting pressure on the witness and reoffending.
25. By decisions of 31 August and 6 December 1999 of the prosecution authorities, the custodial measure, in relation to all six co-accused, was prolonged until 11 December 1999 and 11 March 2000 respectively. The wording of the decisions was identical to that used in the decision of 10 August 1999.
26. It appears that there was no formal order authorising the applicant’s detention during the period between 11 March and 10 May 2000. On 10 May 2000 the Kuntsevskiy District Court of Moscow received the casefile fixed the trial for 22 May 2000 and ruled that the defendants’ “measure of restraint should remain unchanged.”
27. On 12 September 2000 the Kuntsevskiy District Court of Moscow, when remitting the case to the prosecutor’s office, ordered that the applicant and five other defendants remain in custody. The court cited no reasons for ordering such detention. On 25 January 2001 the Moscow City Court upheld the decision of 12 September 2000 on appeal.
28. On 26 February and 23 March 2001 the prosecution authorities, having reproduced the reasoning contained in the decisions of 10 August and 6 December 1999, extended the detention of the applicant and his coaccused until 9 April and 9 July 2001 respectively.
29. On 6 July 2001 the investigator in charge ordered the applicant’s release on bail. The relevant part of the decision reads:
“In view of the completion of the investigation, [the applicant] will not be able to obstruct the course of justice and his appearance in court can be secured by bail in the amount of 100,000 roubles”.
30. By a decision of 29 October 2002 the Khamovnicheskiy District Court, during the trial proceedings, discontinued the bail and ordered the applicant’s detention. In particular, the court noted as follows:
“As follows from the material in the case file, [the applicant] is charged with a number of very serious offences entailing a custodial sentence, [and has] repeatedly tried to delay the proceedings, which is viewed by the court as an attempt to interfere with establishment of the truth, and demonstrated insolent disrespect towards the court.”
31. On 30 October 2002 the applicant lodged an appeal against the decision of 29 October 2002. On 22 January 2003 the Moscow City Court upheld the said decision on appeal. The applicant did not attend the hearing but his lawyer was present.
32. On 24 April 2003 the District Court extended the applicant’s detention until 29 July 2003. The court referred to the gravity of the charges against the applicant. The applicant’s objection that his wife and two minor children were dependent upon him was not taken into account by the court. The applicant appealed on 25 April 2003. On 16 June 2003 the City Court, in the absence of the applicant and his lawyer, upheld the extension on appeal.
33. On 19 June 2003 the District Court further extended the applicant’s detention until 29 October 2003. The court noted as follows:
“Having regard to the [applicant’s] strange behaviour, and his health condition and the gravity of the charges, [the court] has doubts as to the [applicant’s] ability to understand the circumstances relevant to the present case and to testify. Pursuant to the law, ... it is decisive for the correct consideration of the case to determine the [applicant’s] psychiatric and physical condition.
The [applicant’s] detention expires on 29 July 2003. However, the psychiatric forensic examination requires a significant amount of time. The court considers it necessary to extend the [applicant’s] detention.”
34. The applicant lodged an appeal on 24 June 2003. On 6 August 2003 the City Court, in the applicant’s absence, quashed the detention order of 19 June 2003 and remitted the case to the trial court for examination on the merits.
35. By a decision of 13 August 2003 the District Court once again extended the applicant’s detention. The reason given was the gravity of the charges. An appeal lodged by the applicant on 14 August 2003 was dismissed by the City Court on 2 October 2003. The applicant was not present at the appeal hearing but his lawyer attended it.
36. By a decision of 28 October 2003 of the District Court, the applicant’s detention was once again extended, with reference to the gravity of the charges, until 19 January 2004. The arguments by the defence that the applicant had a permanent place of residence in Moscow and that the examination of the case had become dilatory were not taken into account by the court. The applicant appealed on 31 October 2003. He was convicted on 24 November 2003 (see paragraph 19 above). The extension order was upheld on appeal on 12 February 2004. The applicant’s lawyer participated in the appeal hearing but the applicant did not attend.
37. The applicant was detained in remand prison no. IZ-77/2 in Moscow between 29 October 2002 and 20 December 2003. He was transferred between cells on many occasions. The Government and the applicant provided differing descriptions of the applicant’s conditions of detention.
38. The Government provided the following information concerning the conditions of the applicant’s detention in remand prison no. IZ-77/2 in Moscow:
39. The Government further asserted that at all times while in detention the applicant had been provided with an individual sleeping place, bed sheets and cutlery.
40. The applicant accepted the data provided by the Government as regards the cell numbers and floor surfaces of those cells in which he had been detained. He did not challenge the accuracy of the Government’s submissions as concerned the number of bunk beds per cell either. However, he claimed that at all times the cells in which he had been detained were seriously overcrowded. The number of inmates per cell had exceeded its capacity by two to three times. Each cell had housed at least thirty-five persons at any given time. The applicant had never been provided with an individual sleeping place and he had to take turns with other inmates to sleep. Some people had to sleep on the floor under the beds. Apart from one hour per day of exercise, the applicant had been confined in such conditions for the rest of each day, with the exception of the rare occasions when he had met with his lawyer or the fifteen minutes per week which were set aside for showering.
41. According to the Government, the applicant had been allowed to exercise for one hour per day. The remand prison was equipped with sixtyeight exercise yards measuring 10 square metres (sq. m) and 52.8 sq. m for small and large cells respectively. The yards were arranged in such a way as to provide the inmates with the possibility of doing physical exercise. They were equipped with benches and were sheltered from the rain.
42. According to the applicant, the one-hour daily exercise took place in a yard measuring 30 sq. m. Thirty-five to one hundred inmates were taken to the yard at the same time. The yard was covered with metal bars and iron sheets which significantly limited access to daylight.
43. According to the Government, the applicant could take a shower once a week. On the same occasion he received clean bed sheets. The shower facilities functioned properly without breaking down. All the inmates were provided with buckets and detergent to do laundry. The applicant received three meals a day of adequate quality.
44. The cells were equipped with natural and artificial ventilation which was in good working order. The temperature and the humidity in the cells were in compliance with the applicable housing and hygiene standards. The cells were equipped with central heating and a cold water supply. The inmates could use electric kettles or heaters to boil water.
45. The artificial lighting in the cells was in compliance with the applicable specifications and was on from 6 a.m. to 10 p.m. At night lowvoltage bulbs were used to maintain lighting in the cell.
46. In cells nos. 134, 140, 141, 155, 159 and 160 the toilet was completely separated from the living area of the cell by a brick wall and a door. The distance between the toilet and the dinner table was at least two metres. The closest sleeping place was located some 1.5 m away from the toilet.
47. In cells nos. 50, 36, 43, 52 and 298 the toilet was separated from the rest of the cell by a brick wall which was 1.35 m high. The distance between the toilet and the dinner table was at least one metre. The closest sleeping place was located some 0.5 m away from the toilet.
48. The cells were disinfected once every three months or more often, if necessary. During the period of the applicant’s detention in the remand prison, there had been no complaints by him alleging, for example, the presence of rats, parasites or bedbugs.
49. The applicant contested the truthfulness of the Government’s submissions in so far as the description of the sanitary conditions of his detention was concerned. According to him, the ventilation was inadequate. Most of the inmates smoked and the applicant was exposed to second-hand tobacco smoke. There was so little oxygen in the cell that the flame of a match would go out immediately. It was practically impossible to breathe.
50. The cell windows were covered with metal sheets which prevented access to daylight. As a result, the lighting in the cell was insufficient for reading.
51. An electric light was on constantly. The cells were very noisy. The cells were also dirty and needed renovation. They were infested with cockroaches, bedbugs and lice. The toilet was located near the dinner table and offered no privacy. One had to queue to use the toilet. The food provided was scarce and of little variety.
52. The Government and the applicant disagreed as to most aspects of the conditions of detention at and transport to and from the Khamovnicheskiy courthouse.
53. The Government submitted the following information.
54. The Department of the Interior used three types of vans for transporting defendants to and from the courthouse. The ZIL van measured 4.7 m by 2.4 m by 1.64 m and had four compartments with seating capacity for thirty-six persons. The GAZ vans measured 3.8 m by 2.35 m by 1.6 m and had three compartments with seating capacity for twenty-five persons. The vans were ventilated through an opening in the door and by vents in the roof. They were equipped with heating and lighting. The vans were cleaned daily and disinfected on a weekly basis.
55. The distance between the remand prison and the courthouse was approximately seven kilometres and the travel time did not exceed one hour.
56. On the days of the court hearings, the applicant had to get up at 6 a.m. and had breakfast. He was also provided with a lunch bag for the day spent at the courthouse.
57. The courthouse had six holding cells measuring 31 sq. m in total. They had adequate ventilation and lighting and had metal doors with openings for surveillance purposes. The benches were secured to the floor. There was access to sanitary facilities.
58. The applicant provided the following description of the conditions of his detention in, and transport to and from, the courthouse.
59. On approximately fifteen occasions the applicant was transported from the remand prison to the courthouse and back. On those days he normally had to wake up at 5 a.m. and had no breakfast. The prison van had three compartments which measured 3.8 m by 2.35 m by 1.6 m in total. Two compartments housed twelve persons each and the third one was for single occupancy. There were usually eighteen detainees held in each of the bigger compartments. There were not enough seats for everyone and some people had to stand or sit on someone else’s lap. The applicant was transported once in a single occupancy compartment on 24 November 2003 following the delivery of the verdict in his case.
60. The natural ventilation of the van through the hatches was insufficient and it was stiflingly hot in the summer. During the winter the vans were not heated when the engines were off. The floor in the van was extremely dirty. It was covered with cigarette butts, food crumbs, plastic bottles and bags of urine. It was impossible to use the toilet during the journey. The vans had no windows or internal lighting.
61. The van collected inmates from different prisons and made several stops at different courthouses. As a result, the journey from the remand prison to the courthouse for the applicant lasted between one and a half and two hours. The return journey took up to five hours. On the days of the court hearings, the applicant was not provided with any food.
62. The applicant submitted that the holding cells at the courthouse were overcrowded, dirty, poorly lit and unventilated. They measured no more than 5 sq. m. The applicant did not receive any food when he was held there. Nor was there a toilet in the cell. On at least two occasions, when the hearing of his case was adjourned, the applicant spent up to fifteen hours in such conditions. On other days he spent several hours in such cells before and after the hearing.
63. The applicant alleged that on 24 November 2003 he was beaten up by the guards while he was detained at the courthouse. He attempted to bring his grievances to the attention of the trial judge but to no avail.
64. On 25 January 2004 the applicant complained to the prosecutor’s office about the beating.
65. On 5 April 2004 the prosecutor did not find a prima facie case of illtreatment and refused to institute criminal proceedings against the alleged perpetrator. The applicant did not appeal.
66. According to the applicant, on an unspecified date the decision of 5 April 2004 was quashed by a superior prosecutor who ordered an additional inquiry into his allegations. On 26 February 2007 the investigating prosecutor yet again dismissed the applicant’s allegations as unsubstantiated. The applicant did not appeal.
67. The applicant alleged that certain letters from the Court had been opened by the administration of correctional facility no. IK-6 in the Vladimir Region, where he was serving a prison sentence from 2004 to 2006.
68. The Government acknowledged that the Court’s letters of 8 July 2005 and 11 May 2006 addressed to the applicant had been opened by officials and stamped with the seal of correctional facility no. IK-6.
69. On 9 August 2011 the applicant asked the administration of correctional facility no. IK-19, where he was serving a prison sentence, to send certain documents, including his just satisfaction claims and application for legal aid, to his representatives before the Court. The acting head of the internal service dispatched the documents accompanied by a covering letter, stating as follows:
“Please find enclosed the [applicant’s] letter concerning a violation of his rights.
...
Enclosure (11 pages).
(signed)”
In the applicant’s opinion, the Russian authorities, through the above acts, failed to comply with their obligations under Article 34 and interfered with his right to respect for his correspondence.
70. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
71. Moreover, detainees should be given, free of charge, sufficient food for the maintenance of good health in line with the standards established by the Government of the Russian Federation (section 22 of the Act).
72. According to the Code of Criminal Procedure of Russia (hereinafter, “the CCP”), at any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including pre-trial detention (Article 255 § 1).
73. If pre-trial detention is applied to a defendant during the judicial proceedings, its term may not normally exceed six months. However, if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). An appeal against such a decision lies to a higher court (Articles 255 § 4).
74. Article 111 of the CCP provides that in order to ensure the proper administration of criminal proceedings, the court has the power to compel the parties to the proceedings to cooperate by means of measures such as escorting them to a courtroom or imposing fines. The former can be applied to witnesses if they fail to honour a court summons without valid reasons (Article 113). A fine can be imposed on a party in the event of his or her failure to fulfil procedural obligations (Article 117).
75. Pursuant to Article 258 of the CCP, the penalties which a judge may impose on any party, including a defendant, who acts in a manner that disturbs order in the courtroom are (1) a warning, (2) removal from the courtroom, or (3) a fine. Article 258 § 3 provides that the trial, including the parties’ closing arguments, may be conducted in the defendant’s absence. In such a case, the defendant must be brought back to the courtroom to make the final submissions. The judgment must always be delivered in the defendant’s presence.
76. Article 373 of the CCP provides that the appellate court’s role is to review a conviction with a view to verifying its lawfulness, validity and fairness.
77. Article 374 of the CCP provides that an appellate court must commence the examination of a criminal case within one month of receiving an appeal in the case.
78. Article 377 of the CCP provides as follows:
“4. The appellate court may directly examine evidence, if asked to do so by the parties, in accordance with [the rules of criminal procedure applicable to the trial proceedings].
5. In order to substantiate or negate the arguments put forward in a statement of appeal, the parties may submit additional materials for consideration by the appellate court”.
Interpreting Article 377, the Supreme Court of the Russian Federation, in Resolution no. 1 of 5 March 2004 (applicable at the material time), held that such consideration of evidence was limited to a review of the evidence already assessed by the trial court, such as the reading of witnesses’ testimonies.
79. Article 91 § 2 of the Code on the Execution of Sentences and Rule 53 of the Internal Regulations of Correctional Facilities, adopted on 3 November 2005 by Decree No. 205 of the Russian Ministry of Justice, provide that all detainees’ incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility, except for correspondence with courts, prosecutors, prison service officials, the Ombudsman, the public monitoring board and the European Court of Human Rights.
VIOLATED_ARTICLES: 3
5
6
8
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1
6-3
8-1
VIOLATED_BULLETPOINTS: 6-3-c
6-3-d
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1