CASE OF TYCHKO v. RUSSIA

1. The case originated in an application (no. 56097/07 ) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Viktor Vladimirovich Tychko (“the applicant”), on 16 November 2007.
2. The applicant was represented by Ms M. Tychko, a lawyer practising in Volgograd. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. On 4 January 2011 the complaints concerning the conditions of the applicant ’ s detention in the remand prison, the conditions in which he was transported between the remand prison and the courthouse, the conditions of his detention in the courthouse, the length of the criminal proceedings against him and lack of effective domestic remedies with regard to the above complaints were communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1965 and lives in Volgograd.
A. The applicant ’ s arrest and criminal proceedings against him
5. On 15 August 2001 criminal proceedings were instituted against the applicant on suspicion of large-scale fraud.
6. On 28 September 2001 the applicant was arrested and remanded in custody.
7. On 2 October 2001 and 22 July 2002 charges were brought against the applicant.
8. On 7 August 2002 the criminal case was submitted to the Tsentralniy District Court of Volgograd (“the District Court”) for trial.
9. On 8 October 2002 the first hearing was held. It was presided over by judge A.
10. On 26 November 2002 the applicant was released from custody.
11. On 30 December 2002 the case was transferred to judge G. and, pursuant to Article 242 of the Code of Criminal Procedure (Immutability of court composition), the trial was restarted.
12. Between March and June 2003 and between June 2004 and January 2005 the hearings were adjourned on seven occasions: on five occasions due to the non-attendance of the accused, their representatives and the witnesses, and on two occasions, from 19 May to 11 July 2003 and from 10 December 2004 to 17 January 2005, following requests from the applicant for more time to study the case file.
13. In the meantime, on 19 January 2003, an unrelated criminal case was opened against the applicant on suspicion of storing firearms and narcotic drugs. He was again remanded in custody on 20 January 2003. On 19 June 2003 the District Court convicted the applicant of storing firearms and narcotic drugs and sentenced him to eight years ’ imprisonment.
14. On 28 March 2005 judge G. went on maternity leave, and on 26 April 2005 the initial case was transferred to judge S. The trial was restarted.
15. Between May and November 2005 the hearings were adjourned on two occasions due to the non-attendance of the participants in the trial.
16. On 16 December 2005 judge S. resigned, and on 14 February 2006 the case was transferred to judge M. The trial was again restarted.
17. Between March and June 2006 the hearings were adjourned on three occasions due to the non-attendance of the participants in the trial.
18. On 19 July 2006 judge M. resigned and the case was transferred to judge Mar. The trial was restarted for the fourth time.
19. Between November 2006 and June 2008 the hearings were adjourned on five occasions due to the non-attendance of the participants in the trial.
20. On 6 August 2008 the District Court of Volgograd found the applicant guilty of complicity in large-scale fraud and sentenced him to three years and six months ’ imprisonment. The final sentence under both verdicts was set at nine years ’ imprisonment.
21. On 1 December 2009 Volgograd Regional Court upheld the judgment on appeal.
B. Conditions of detention in Volgograd remand prison IZ-34/1
22. The applicant was detained in Volgograd remand prison IZ-34/1 from 10 October 2001 to 26 November 2002, from 20 January 2003 to 19 August 2003, from 23 September 2003 to 17 May 2005 [1], from 12 July 2005 to 29 April 2008 and from 16 May 2008 to 6 September 2008. He submitted that the cells had been severely overcrowded and in a poor sanitary condition.
23. The cell where the applicant was held most recently, measuring approximately thirty square metres and equipped with eighteen bunk beds, accommodated between twenty and thirty inmates at any given time. The inmates were obliged to take turns to sleep.
24. The toilet in the corner of the cell (a hole in the floor measuring about 15-20 cm in diameter), elevated above the floor by 0.4 metres and separated by a 0.6 metre partition, offered no privacy. It had no flushing system.
25. The cell was not equipped with a washstand. Instead, the inmates had to use the water running from a tap over the toilet.
26. The dining table was situated a metre away from the toilet. It could seat about ten inmates. The rest of the inmates had to eat sitting on the concrete floor.
27. The food was of low quality. The drinking-water tanks were placed on the floor.
28. The cell was lit around the clock by two 100 - watt filament lamps. It was poorly ventilated. The air was thick with the stench of tobacco, laundry and the toilet.
29. The cell was infested with insects and rodents.
30. The applicant was allowed to take a five-minute shower once a week.
31. The exercise yards were unequipped and too small to accommodate all the detainees properly.
32. The applicant twice contracted tuberculosis while being detained in Volgograd IZ-34/1. His eyesight deteriorated.
33. The applicant ’ s attempts to challenge the conditions of his detention before various domestic authorities yielded no result.
C. Conditions of transport between the remand prison and the courthouse, and in the courthouse
34. The applicant was transported from the remand prison to the courthouse and back more than a hundred times between 2001 and 2008. Prisoners were transported between the remand prison and the courthouse in a prison van – a metal freight vehicle comprising three compartments: two designed for twenty inmates and the third one for single occupancy. The van had no windows and offered no access to natural light or air. It had no artificial lighting or ventilation either. There were no seat belts or other safety equipment to prevent inmates from falling and hitting themselves against the walls. It was stiflingly hot in the van in the summer and freezing cold in the winter.
35. There were four cells in the holding area of the District Court where the applicant was taken. Each cell measured about three square metres and accommodated five to six inmates. The cells were equipped with one bench each, which could seat only three inmates. Those suffering from hepatitis, tuberculosis, HIV and other diseases were placed together with the rest of the inmates. On each occasion the applicant spent as long as seven or eight hours in such conditions.
36. Federal Law No. 68- FZ of 30 April 2010 (in force as of 4 May 2010) provides that in the case of a violation of the right to a trial within a reasonable time, the party concerned is entitled to seek compensation in respect of non-pecuniary damage. Federal Law No. 69- FZ (enacted on the same date) introduced a number of corresponding changes to the Russian legislation.
37. Section 6.2 of Federal Law No. 68- FZ provided that parties who had an application pending before the European Court of Human Rights concerning a violation of their right to a trial within a reasonable time, had six months from the date of entry into force of the Law to lodge their claim for compensation with the domestic courts.
I. THE GOVERNMENT ’ S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
38. In April and July 2014 the Government proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike the application out of the list of cases in accordance with Article 37 of the Convention.
39. The applicant rejected the Government ’ s offer on both occasions.
40. Having studied the terms of the Government ’ s unilateral declaration, the Court considers that it does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case.
41. Therefore, the Court rejects the Government ’ s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
42. The applicant complained that the conditions of his detention in Volgograd remand prison IZ-34/1, the conditions in which he was transported between the remand prison and the courthouse, and the conditions of his detention in the courthouse had been inhuman and degrading in violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
43. Article 35 § 1 of the Convention permits the Court to deal with a matter only if the application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant. In cases featuring a continuing situation, the six-month period runs from the cessation of that situation (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 72, 10 January 2012, with further references).
44. Since the Russian legal system offers no effective remedy in respect of the complaints about conditions of pre-trial detention, conditions of transport between the remand prison and the courthouse and conditions of detention in the courthouse (see Ananyev and Others, cited above, § 119; Romanova v. Russia, no. 23215/02, § 84, 11 October 2011; and Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 104, 12 February 2009 ), the six-month period should be calculated from the end of the situation complained of.
45. The Court notes that the applicant brought his complaints under Article 3 of the Convention on 4 February 2009.
1. Compliance with the six- month requirement in connection with the applicant ’ s complaint about conditions of his detention in the remand prison
46. The Court observes that the applicant was detained in Volgograd remand prison IZ-34/1 during the following periods (see paragraph 22 above):
- from 10 October 2001 to 26 November 2002;
- from 20 January to 19 August 2003;
- from 23 September 2003 to 17 May 2005;
- from 12 July 2005 to 29 April 2008; and
- from 16 May to 6 September 2008.
(a) Detention between 10 October 2001 and 26 November 2002
47. The Court notes that the first period of the applicant ’ s detention ended on 26 November 2002 when he was released (see paragraph 10 above ). Thus, the complaint about the conditions of his detention from 10 October 2001 to 26 November 2002 should have been submitted no later than 26 May 2003. It has therefore been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Grishin v. Russia, no. 30983/02, § 83, 15 November 2007 ).
(b) Detention between 20 January 2003 and 6 September 2008
48. As regards the applicant ’ s subsequent detention during the investigation and trial over four periods between 20 January 2003 and 6 September 2008 (see paragraph 22 above), the Court considers that it constituted a continuing situation. His short absences between 19 August and 2 3 September 2003, 17 May and 12 July 2005, and 29 April and 16 May 2008 during which he was taken out of the facility for interviews or other procedural measures and treated in the prison hospital did not affect the continuous nature of the detention (see Mela v. Russia, no. 34044/08, § 48, 23 October 2014; Ananyev and Others, cited above, § 78; and Romanov v. Russia, no. 63993/00, § 73, 20 October 2005 ). The applicant has therefore complied with the six-month rule in respect of this part of his complaint.
2. Compliance with the six-month requirement in connection with the applicant ’ s complaint about the conditions in which he was transported between the remand prison and the courthouse and the condition of his detention in the courthouse
49. The Court notes that the applicant was transported between the remand prison and the courthouse and detained in the courthouse on several occasions between 20 January 2003 and 6 August 2008. The absence of any marked variation in the conditions of transport and of detention in the courthouse to which the applicant was routinely subjected created a “continuing situation” ( see Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 75, 17 January 2012). Having introduced his complaint on 4 February 2009, the applicant has therefore complied with the six-month rule in respect of this complaint.
50. The Court notes that the complaint about the conditions of the applicant ’ s detention in Volgograd remand prison IZ-34/1 during four periods between 20 January 2003 and 6 September 2008, and the complaint about the conditions in which he was transported between the remand prison and the courthouse, and the conditions of his detention in the courthouse are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
51. The Government have acknowledged the violation of Article 3 of the Convention on all counts.
52. The applicant took note of the Government ’ s admission.
53. Having regard to the applicant ’ s factual submissions and the Government ’ s acknowledgement, the Court considers that the conditions of the applicant ’ s detention in Volgograd remand prison IZ-34/1, the conditions in which he was transported between the remand prison and the courthouse and the conditions of his detention in the courthouse amounted to inhuman and degrading treatment. There has accordingly been a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ITS ARTICLE 3
54. The applicant complained that he had not had at his disposal an effective domestic remedy for his grievances under Article 3, as required by Article 13 of the Convention, which provides that:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
56. The Government acknowledged that the applicant had not had at his disposal an effective remedy with regard to his complaints under Article 3, in violation of Article 13 of the Convention.
57. The applicant took note of the Government ’ s admission.
58. In the circumstances of the present case the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of Article 13 of the Convention in conjunction with Article 3.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
59. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, the relevant part of which provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
60. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
61. The Government submitted that the criminal proceedings against the applicant had lasted eight years, three months and fifteen days. It had taken the domestic authorities one year to carry out a preliminary investigation and more than seven years to complete the trial. The length of the trial was due to the complexity of the case, involving several charges and several co ‑ accused. The case file comprised sixty-six volumes. On several occasions between 2002 and 2005 hearings were scheduled before the Regional Court following the applicant ’ s complaints. Furthermore, three judges had to be replaced during the trial : in March 2005 one of the judges (judge G.) went on maternity leave, and in February and August 2006 two others (judges M. and Mar.) resigned. On many occasions the hearings were adjourned due to non-attendance of the defendants, their representatives, and witnesses. The proceedings were further stayed at the request of the applicant, who needed time to study the case file. In view of the foregoing arguments, the Government concluded that the length of the proceedings in the present case had not breached the “reasonable time” requirement set out in Article 6 § 1 of the Convention.
62. The applicant submitted that the case had not been particularly complex, as several charges had been dropped by the court. He explained that on several occasions between 2002 and 2005 he had indeed complained to the Regional Court about the procedural decisions of the District Court, and that the decisions in question had been found unlawful. He argued that he should not be held responsible for delays in the proceedings on account of having challenged unlawful decisions. The applicant further clarified that four judges had been replaced during the proceedings : judges A., G., S. and M. The trial, therefore, had had to start anew four times : in 2002, 2005 and twice in 2006. The applicant stressed, however, and provided evidence, that judges A. and M., who had allegedly retired in 2002 and 2005 respectively, had continued to adjudicate cases in the District Court in 2007. As to the adjournments of hearings due to the absence of the accused, the applicant submitted that throughout the preliminary investigation and the trial he had remained in the remand prison and had always been escorted to attend the court hearings. The only time when he could not be escorted was in the short period between May and July 2005 when he was in the prison hospital. That period of time was negligible compared with the overall length of the proceedings. As to the non-attendance of witnesses, the applicant contended that those who had failed to appear were prosecution witnesses, and that it was for the court to discipline them. He submitted that most of the prosecution witnesses had failed to appear and that he had had to agree to the reading out of their statements given at the pre-trial stage of the investigation in order to expedite the proceedings. He acknowledged that between 19 May and 11 July 2003 and between 10 December 2004 and 17 January 2005 the trial had been adjourned at his request, as he had needed time to study the case file. He pointed out, however, that during part of the latter period the court had not worked anyway because of the New Year ’ s holidays. Summing up, the applicant argued that the main reason for the excessive length of the criminal proceedings against him had been the poor organisation in the work of the investigating authority and the court.
(a) Period to be taken into consideration
63. The Court reiterates that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term. It ends with the day on which a charge is finally determined or the proceedings are discontinued. The “charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Bakhmutskiy v. Russia, no. 36932/02, § 153, 25 June 2009 ).
64. The period to be taken into consideration in the present case began on the date of the applicant ’ s arrest, 28 September 2001, when he was first affected by the “charges” against him and ended on 1 December 2009 when his conviction became final. It follows that the period to be taken into consideration has lasted eight years, two months and five days. That period spanned the investigation stage and two levels of jurisdiction.
(b) Reasonableness of the length of proceedings
65. The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicant ’ s conduct and the conduct of the competent authorities. On the latter point, what is at stake for the applicant also has to be taken into consideration (see Bakhmutskiy, cited above, § 155, with further references ).
66. The Court accepts that the proceedings at issue were rather complex, taking into account the nature of the accusations against the applicant and the volume of the case file. However, the Court cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings. The Court further reiterates that the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Chudun v. Russia, no. 20641/04, § 112, 21 June 2011 ).
67. As regards the applicant ’ s conduct, the Court notes the Government ’ s argument that the applicant had to bear responsibility for the delays in the proceedings caused by his appeals against the procedural decisions of the trial court and his requests for adjournments so that he could study the case file. In this connection, the Court considers that the applicant cannot be blamed for taking full advantage of the resources afforded by national law in his defence (see Gubkin v. Russia, no. 36941/02, § 167, 23 April 2009, and Moiseyev v. Russia, no. 62936/00, § 192, 9 October 2008 ). In any event, the above actions by the applicant do not appear to have contributed to the aggregate length of the proceedings in any significant way.
68. As to the Government ’ s arguments to the effect that certain delays in the proceedings were caused by the non-attendance of the participants in the trial, including the applicant, his co-defendant, their representatives and the witnesses, the Court considers that they were attributable to the State. The applicant himself was detained in custody throughout most of the trial and his attendance was dependent on the domestic authorities in charge of transporting him from the remand prison to the courthouse (see Popandopulo v. Russia, no. 4512/09, § 131, 10 May 2011 ). As to the non ‑ attendance of the other participants in the trial, the Court considers that it was for the trial court to discipline them (see Lamazhyk v. Russia, no. 20571/04, § 116, 30 July 2009, and Sidorenko v. Russia, no. 4459/03, § 34, 8 March 2007).
69. The Court also observes, in respect of the conduct of the domestic authorities, that the trial had to start anew on four occasions owing to replacements of the bench in December 2002, March 2005, February and July 2006 (see paragraphs 9, 11, 14, 16 and 18 above), resulting overall in an inordinate delay of four years. It notes the evidence provided by the applicant that the judges who had been replaced in December 2002 and July 2006 following their “ resignation ” had continued to adjudicate other cases in the District Court at least until 2007.
70. Having regard to the above circumstances, the Court considers that the length of the proceedings exceeded a “reasonable time”.
71. There has therefore been a violation of Article 6 § 1 on account of the excessively lengthy criminal proceedings against the applicant.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6
72. The applicant further complained that he had not had at his disposal an effective domestic remedy for his grievance under Article 6 § 1 of the Convention, as required by Article 13, cited above.
73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
74. The Government submitted that the applicant had failed to bring his grievance to the attention of the domestic courts, asserting that he could have done so using the applicable domestic legislation in force since 4 May 2010.
75. The applicant maintained his complaint.
76. The Court takes cognisance of the existence of a new remedy introduced by Federal Laws nos. 68- FZ and 69- FZ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009). Those laws, which entered into force on 4 May 2010, introduced a new remedy, which enables those concerned to seek compensation for damage sustained as a result of unreasonably lengthy proceedings (see paragraph 36 above).
77. The Court accepts that from 4 May 2010 and until 4 November 2010 the applicant had a right to use that remedy (see paragraph 37 above) but chose not to pursue it.
78. In the pilot judgment cited above, the Court stated that it would be unfair to request applicants, whose cases had already been pending for many years in the domestic system and who had come to seek relief at the Court, to bring their claims again before domestic tribunals (see Burdov, cited above, § 144). In line with that principle, the Court decided to examine the complaint of excessively lengthy proceedings on its merits and found a violation of the substantive provision of the Convention.
79. However, an examination of the present case on its merits should in no way be interpreted as prejudging the Court ’ s assessment of the quality of the remedy introduced in 2010. It will examine this question in other cases that are more suitable for such analysis. It does not see fit to do so in the present case, particularly as the parties ’ observations were made in relation to a situation that had existed before the introduction of the remedy.
80. Having regard to these special circumstances, the Court does not consider it necessary to pursue a separate examination of the complaint under Article 13 in the present case (see Shcherbakov v. Russia (no. 2), no. 34959/07, § § 114-23, 24 October 2013).
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
81. Lastly, the applicant complained under Article 5 of the unlawfulness of his detention between 28 September 2001 and 26 November 2002 (see paragraphs 6 and 10 above). The invoked Article, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. ”
82. The Court observes that the applicant was released on 26 November 2002. Consequently, the six-month time-limit under Article 35 § 1 started running on that date. However, the complaint under Article 5 was not introduced until 16 November 2007, which is more than six months later.
83. It follows that the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
84. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
85. The applicant claimed 90,000 euros (EUR) in respect of non ‑ pecuniary damage.
86. The Government considered that the claim was unsubstantiated and excessive.
87. Having regard to its case-law in similar cases, the Court awards the applicant EUR 18, 0 00 in respect of non-pecuniary damage, plus any tax that may be chargeable.
88. The applicant also claimed EUR 2,160 for the costs and expenses incurred before the Court, comprising legal, postal and translation fees, all supported by relevant invoices and receipts.
89. The Government considered that the applicant had failed to prove that the costs and expenses claimed had been incurred and that they were reasonable.
90. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,160 covering legal fees incurred for the proceedings before it, plus any tax which may be chargeable to the applicant on that amount.
91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Rejects the Government ’ s request to strike the application out of the Court ’ s list of cases;