In the case of Maksim Petrov v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section
Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
23185/03) 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 Maksim Vladimirovich Petrov (“the
applicant”), on 21 April 2003.
The applicant, who had been granted legal aid,
was represented by Ms O.V. Preobrazhenskaya, a lawyer practising in the
city of Moscow. The Russian Government (“the Government”) were initially represented by Mrs V. Milinchuk, former
Representative of the Russian Federation at the European Court of Human Rights,
and subsequently by their Representative Mr G. Matyushkin.
The applicant alleged, in particular, that the
conditions of his detention and transportation had been appalling, and that the
authorities had repeatedly breached his right to presumption of innocence
before the delivery of the judgment in his criminal case. He relied on Articles
3 and 6 of the Convention.
On 7 January 2008 the President of the First
Section decided to communicate the application to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1965 and is currently
serving a sentence of life imprisonment in the town of Solikamsk, Perm Region.
A. Criminal
proceedings
In 1999 there were incidents in St Petersburg in
which many elderly and sick people were attacked in their homes by a criminal posing
as a doctor.
On 17 January 2000 the applicant, a doctor
working for an emergency service, was caught on the spot while trying to enter
an elderly person’s apartment. He was arrested on charges of multiple robbery
and murder and has remained in detention since that date. The applicant submits
that he was ill-treated during his arrest.
On 21 November 2003 the St Petersburg City Court
examined the applicant’s criminal case and convicted him on multiple charges of
murder, attempted murder and robbery. The applicant was sentenced to life
imprisonment.
The court established that the applicant had
posed as a doctor and, having entered his victims’ flats, injected them with soporifics,
sometimes in lethal quantities, and then robbed them, killing some of them. In
total, there were eleven victims in the case who either died or could have died
as a result of the applicant’s criminal activity.
The conviction was based on several pieces of
evidence, including the applicant’s bag with needles and prepared soporific
materials, expert examinations of these materials, oral evidence given by
numerous witnesses, including a pawnshop owner who had bought various items
from the applicant on numerous occasions, the surviving victims, the applicant’s
own statements and the autopsy reports on the victims.
During the proceedings the applicant complained
that his lawyer had failed to take some investigative actions. The court
examined this grievance, questioned both the applicant and his lawyer, and
concluded that the lawyer’s lack of action had been due to the applicant’s own
deliberate decision.
The applicant also tried to retract his
self-incriminating statements given at the pre-trial stage of proceedings, with
reference to torture and coercion. The court examined this argument in detail,
having, among other things, ordered an additional investigation in the matter,
and explicitly rejected it as unsubstantiated. The decisions to discontinue the
investigation with reference to the lack of indication that any crime had been
committed were taken by the relevant prosecutor’s office on 27 March and 14 May
2003.
They established that the applicant had actively
resisted arrest and the police officers had therefore had to apply physical
force. The decisions also concluded that the officers had only applied physical
force in so far as it was rendered unavoidable by the applicant’s own conduct.
The applicant did not appeal against the
prosecutor’s decisions to discontinue the investigation in court.
The applicant’s sentence was upheld by the
Supreme Court on appeal on 24 June 2004.
It appears that the applicant was, among other
things, dissatisfied with the fact that the first-instance court had consisted
of a single judge. Having examined this argument, the appeal court noted that the
applicant had been given a choice between the single judge composition and the
composition consisting of a professional judge and two lay assessors. The
applicant had explicitly chosen the former option.
It does not appear that the applicant brought
any court proceedings in respect of the detention orders in his case.
B. The conditions of the applicant’s detention and
transportation
1. The conditions of the applicant’s detention
Following his arrest on 17 January 2000 the
applicant was placed in the Inter-district Temporary Detention Centre of the
Principal Department of the Ministry of the Interior in St Petersburg (the
Detention Centre, Межрайонный изолятор временного содержания ГУВД).
He remained there until 28 January 2000.
The applicant submits that the conditions in the
centre were terrible. The overcrowded cell measured no more than eight square
metres without windows or ventilation. There were more than ten inmates in the
cell. They were not provided with blankets or bed linen or with any opportunity
to exercise or even walk. They were only given 300 ml of drinking water per
day. There were no proper washing arrangements in the cells, the light was on
all the time and there was an exceptionally high humidity level.
On 28 January 2000 the applicant was transferred
to remand prison IZ-45/1 in St Petersburg (later renumbered IZ-47/1). It
appears that he was transported back to the Detention Centre from time to time
during the investigation stage of the proceedings. His stay in the centre usually
lasted for no more than ten days.
According to the applicant, all the prison cells
were severely overcrowded, exceeding their design capacity at least twofold.
The cells measured around eight square metres and contained between eight and twelve
inmates. Until he was transferred to a solitary cell on 21 November 2003,
he had to take turns to sleep. There was no proper ventilation and the toilet
facilities were not partitioned off from the rest of the cell. The light was
constantly on, the food was of poor quality, and the heating system was either
lacking or out of order.
The Government submitted the following
information concerning the applicant’s detention in the IZ-47/1. The applicant
was held in this detention facility between 28
January 2000 and 3 October 2004, when he was transferred to penal facility IK-2.
In remand facility IZ-47/1 the applicant was held
in cells 760, 780, 740, 376, 468, 456, 453, 64 and 126. Apart from cell no. 780,
which measured some ten square metres, had one window and held up to seven inmates,
including the applicant, the rest of the cells were identical. They all
measured around eight square metres, had one window and contained up to seven inmates.
Between 31 January 2000 and 4 November 2001 the
applicant was detained in cell no. 760. From 31 January to 17 June 2000 the
cell contained a total of three inmates. The rest of the time there were seven
inmates in the cell.
Between 4 November 2001 and 8 April 2002 the
applicant was detained in cell no. 740. From 13 January 2001 to 1 April 2002
the cell contained a total of three inmates, whilst the rest of the time this
number was up to seven.
From 9 to 26 April 2002 the applicant was held
in cell no. 376. From 12 to 20 April 2002 there were three inmates in the cell
in total and the rest of the time it contained seven inmates.
From 26 April to 10 September 2002 the applicant
was held in cell no. 468. The cell contained a total of four inmates between 20
May and 15 July 2002 and seven inmates for the rest of the time.
The applicant was held in the same cell also
between 12 September 2002 and 10 January 2003. Between 30 September and 29
December 2002 he was held in the cell with two other inmates, whilst the rest
of the time the cell contained up to seven inmates.
Between 10 and 15 January 2003 the applicant was
held in cell no. 456. On 11 and 12 January 2003 there were three inmates
in the cell, whilst the rest of the time there were up to seven.
From 15 January to 4 April 2003 the applicant
was again detained in cell no. 468. Between 15 February and 10 March 2003 there
were three inmates in the cell. The rest of the time it held up to seven
inmates.
The applicant was moved to cell no. 453 on 4
April 2003, until 30 May 2003. From 21 to 30 April 2003 there were three
inmates in the cell, whilst the rest of the time there were up to seven.
The applicant was held in the same cell from 2
June to 21 July 2003. Between 12 June and 10 July 2003 the cell held three
inmates and the rest of the time it held seven inmates.
The applicant was moved to cell no. 64 on 21
July 2003, until 21 November 2003. Between 28 September and 25 October
2003 there were three inmates in the cell. The rest of the time there were up
to seven inmates in the cell.
The applicant was transferred to cell no. 126 on
21 November 2003, and thereafter was held in solitary confinement.
The Government admitted that the detention
facility was overcrowded, but denied that there had been any problems or issues
with any other conditions of the applicant’s detention such as ventilation,
toilets, food arrangements and so on. In particular, the Government referred to
various certificates issued by the prison administration confirming that the
prison at issue was equipped with a proper ventilation system, had appropriate
washing arrangements and that proper measures to control rats and insects had
been in place.
The Government also referred to certificate no.
65/14-866 dated 14 March 2003, issued by the prison administration, which
specifically admitted that there was a lack of precise information about the
number of inmates during the applicant’s stay in IZ-47/1. It referred to
records confirming the destruction of the relevant prison logs on 14 January
2003, 13 January and 20 December 2005 and 20 December 2006.
The applicant agreed with the Government
concerning the surface area of the cells, but disputed the numbers of the
inmates. He also specified that between January and November 2000 he was constantly
being transferred from the Detention Centre to the remand prison, staying in
both intermittently.
2. The conditions of transportation
The applicant submitted that the conditions of
his transportation to and from the court hearings had been appalling.
According to him, on the hearing days he was
usually taken out of his cell at 4 a.m. and placed in a preliminary reception
cell, which measured some eight square metres and usually contained 20 inmates.
An hour later, the inmates were placed in a prison van, which was originally
designed for sixteen or seventeen passengers but which in reality contained no fewer
than thirty. Given the length of the journey and frequent traffic jams, each
return trip took around four hours. On these days the inmates did not receive
any food between 4 a.m. and 8 p.m.
The Government relied on prison certificate no.
65-1690 dated 19 March 2008 issued by the Regional Department of the
Ministry of Justice, which confirmed that during his stay in IZ-47/1 the
applicant had made a total of thirty-two trips. The trips took place on 17
September, 21, 23 and 25 October, 12 November and 4 and 5 December 2002, and
27 January, 20 February, 28 and 31 March, 5 and 7 May, 16, 17 and 18 June,
1 and 4 July, 22, 23, 25 and 26 September, 1, 6, 8, 13, 16, 20, 28 and 30
October, and 18 and 21 November 2003.
The Government submitted that the applicant had
received a hot breakfast before leaving and a hot supper after his return to
prison. In addition, he was allowed to take food with him to the hearings. The
Government stated that a one-way trip lasted around thirty to forty minutes and
the prison vans were never overcrowded. They did not rely on any original
documentation to confirm these submissions.
According to the certificate issued by the
prison administration no. 65-1630 dated 17 March 2008, the original
documentation recording the number of inmates transported on each such occasion
with the exact routes and durations of the respective trips could not be
submitted because transportation was carried out by the Regional Department of
the Ministry of the Interior.
The Government submitted a copy of the record
from the Regional Department of the Ministry of the Interior dated 4 May 2005
and confirming the destruction of some logs concerning the period from January
to the end of August 2000. According to the Government, these were the logs
concerning the applicant’s trips.
The applicant agreed with the dates of the trips
and their overall number. He maintained on his initial account of the events as
regards the rest of the details.
3. The applicant’s attempts to obtain damages in connection
with the conditions of his detention and transportation
On an unspecified date
after his transfer to a penal establishment the applicant sued the Ministry of
Finance for damages in connection with the allegedly appalling conditions of
detention and transportation in prison. Among other things, he relied on
Article 3 of the Convention and the Court’s case-law.
By a judgment of 23 July 2009 the Kalininskiy
District Court (St Petersburg) rejected his claim in full as unsubstantiated.
The court considered that the applicant had failed to submit sufficient
evidence in support of his allegations. Given that the prison administration
denied the applicant’s allegations, his claim was rejected as unsubstantiated.
The first-instance
judgment was upheld on appeal by the St Petersburg City Court on 5 November 2009.
C. The media coverage of the applicant’s criminal case
The applicant’s case received country-wide media
coverage both before his arrest, pending the criminal investigation and court
proceedings as well as after the trial.
1. The articles published before and shortly after the
applicant’s arrest
On 15 January 1999 a local newspaper, Nevskoye
Vremya published an article ‘A killer in the city with a syringe’
describing robberies and murders, involving a person yet uncaught posing as a
doctor. The article reported the deaths of two elderly people and then stated:
“... According to the police, it would seem that both [deceased]
persons became victims of a criminal posing as a medical officer. A series of
such crimes began in St Petersburg about a year ago ...”
On 26 January 2000 a local newspaper, Peterburg
Ekspress, reported that “a few days ago a maniac was captured in St Petersburg”. It also published a photofit picture of the wanted person with a
description: “a doctor, whose photofit you can see here, killed nine old people”.
The newspaper also published a map of the city on which the locations of the
applicant’s activities were marked, and interviews with surviving victims.
On 5 April 2000 a national newspaper, Komsomolskaya
Pravda, published an article headed ‘Doctor killed old women for smoked
sausage’, describing episodes of the applicant’s alleged criminal activity and disguising
his name.
It appears that during the summer of 2000 some
reports were broadcast on various television channels reporting on the
applicant’s criminal case.
2. The articles published in 2002 and 2003, before the
delivery of the judgment in the applicant’s case
On 5 March 2003 the Moskovskiy
Komsomolets newspaper published an article headed ‘Did you call a butcher?’
and describing the charges against the applicant. The article gave an overview
of the case and then quoted police comments on the applicant’s actions and
personality:
“... police officer S. Z. says: ‘What repentance [by the
applicant]? ... What are you talking about? He killed old ladies, stole their
pasta and the same evening was eating this pasta with his family’.
... All the victims in this case have already been questioned,
the evidence studied. But the verdict will not be delivered very soon - the
judge has yet to check all the applicant’s arguments. So let us not run ahead
of the train with suppositions about the possible verdict ...”
On 4 November 2003 the
Peterburg Ekspress newspaper published an article “Murderous doctor in the
dock” which, in its relevant parts, read as follows:
“... Two years ago, in our issue ... of 26 January 2000, we
wrote about the arrest of the murderous doctor who paid visits to elderly
people, injected them with soporifics, and when they fell asleep robbed them of
their personal belongings. Overall, his personal score is over fifty attacks and
seventeen murders. Maksim Petrov, accused of these cruel crimes, was
apprehended by police officers of the Frunzenskiy District Department of the
Interior in the winter of 2000, and only on 21 October the first hearing took
place at the City Court in what is being called the doctor’s case.
... Police officers of the Frunzenskiy District Department of
the Interior in charge of the investigation concluded that this was a case of a
serial killer. At the same time, they learned that the criminal found his future
victims by using fluorographic pictures stolen from a district polyclinic.
... ‘We had to find a potential victim of the doctor’, says
A.K., the head of the department in charge of homicide investigations in the
Frunzenskiy District Department of the Interior. [He then continued:] ‘We
seized the registration books from the polyclinic and composed a carefully
checked list of retired people, each of whom could be subject to an attack of
the doctor. The first list contained 3,500 names, the next list 600 and, as a
result, we ended up with seventy-two addresses which could be visited by the
maniac.
... A.K., the head of the department in charge of
investigations of homicides in the Frunzenskiy District Department of the
Interior, hopes that the doctor-maniac gets a life sentence, because he is
responsible for over sixteen murders and over fifty robbery episodes. ...”
An article published in Komsomolskaya
Pravda (in St Petersburg) newspaper on 17 November 2003 and headed “How
many [years in prison] will they give to Doctor Petrov?” gave the background of
the applicant’s case and some details about the ongoing trial proceedings. It
then stated:
“... our journalist managed to meet the police agents who had
arrested Maksim Petrov. Now that the verdict is close, they agreed for the
first time to tell us about the operation, which was later called ‘Medical
Brother’. So the cast (with their offices during the operation): Yu. D., senior
police agent of the Frunzenskiy District Department of the Ministry of the
Interior, Yu. Sh., senior police agent of the [same department], V. T., head of
[that] department and of the special operation itself ...
...’He is the scariest person I’ve ever seen during my time in the
criminal police’ ̶ Yu. D. shared his thoughts [He then continued:]
‘We in our city have never had, or not at least since 1917 and
the gang syndicate of Lyon’ka Panteleev, such a killer who has knowingly and in
such cold blood killed so many people. Over ten killings proven! And how many others
have there been? Not known! He is a dreadful maniac! Look at this: he has
killed some of our parents for a dime. I only
regret one thing - that when we arrested him we were not 100% certain that he
was the killer. Had I known this for sure, I would not have taken him alive. A
skunk like that deserves only death!’ ...”
On 20 November 2003 the Smena
newspaper, in its issue no. 6, reported on the applicant’s case and trial,
mentioning that during the trial the applicant denied the charges against him.
3. The applicant’s attempts to raise the complaint
about the alleged breach of the presumption of innocence before the domestic
authorities
In October 2002 the applicant made a pleading before
the trial court, mentioning the disclosure of investigation materials by the
police officers before the delivery of the verdict in his criminal case. He
also mentioned this issue in his appeal arguments. These arguments remained
unanswered.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Rules on the prison regime in pre-trial detention
centres (as approved by Ministry of Justice Decree no. 148 of 12 May 2000)
Rule 42 provided that all suspects and accused
persons in detention had to be given, among other things: a sleeping place,
bedding, including one mattress, a pillow and one blanket; bed linen, including
two sheets and a pillow case; a towel; tableware and cutlery, including a bowl,
a mug and a spoon; and seasonal clothes (if the inmate has no clothes of his
own).
Rule 44 stated that cells in pre-trial detention
centres were to be equipped, among other things, with a table and benches with
a number of seating places corresponding to the number of inmates, sanitation
facilities, tap water and lamps to provide daytime and night-time illumination.
Rule 46 provided that prisoners were to be given
three hot meals a day, in accordance with the norms laid down by the Government
of Russia.
Under Rule 47 inmates had the right to have a
shower at least once a week for at least fifteen minutes. They were to receive
fresh bed linen after taking their shower.
Rule 143 provided that inmates could be visited
by their lawyer, family members or other persons, with the written permission
of an investigator or an investigative body. The number of visits was limited
to two per month.
B. Order
no. 7 of the Federal Service for the Execution of Sentences dated
31 January 2005
63. Order no. 7 of the Federal Service for
the Execution of Sentences of 31 January 2005 deals with implementation of
the “Pre-trial detention centres 2006” programme.
The programme is aimed at improving the
functioning of pre-trial detention centres so as to ensure their compliance
with the requirements of Russian legislation. It expressly acknowledges the
issue of overcrowding in pre-trial detention centres and seeks to reduce and
stabilise the number of detainees in order to resolve the problem.
The programme mentions detention centre IZ-47/1 in St Petersburg among those
affected, with a number of detainees which seriously exceeded capacity (by as
much as 152,4 %). The other remand prisons in and around St Petersburg, IZ-47/2
(the town of Tikhvin of the Leningrad Region), IZ-47/3 (the town of Vyborg of the Leningrad Region), IZ-47/4 (St Petersburg), IZ-47/5 (St Petersburg) and
IZ-47/6 (the town of Gorelovo of the Leningrad Region), are all mentioned as
affected to various degrees by the same problem.
C. Rules on the presumption of innocence
. Article
49 of the Constitution of the Russian Federation provides that everyone accused
of committing a crime shall be considered innocent until proven guilty
according to the rules fixed by the federal law and confirmed by the sentence
of a court which has come into legal force.
III. Relevant
Council of Europe documents
The relevant extracts from the General Reports
of the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (“the CPT”) read as follows:
Extracts from the 2nd General Report [CPT/Inf (92) 3]
“46. Overcrowding is an issue of direct relevance to
the CPT’s mandate. All the services and activities within a prison will be
adversely affected if it is required to cater for more prisoners than it was
designed to accommodate; the overall quality of life in the establishment will
be lowered, perhaps significantly. Moreover, the level of overcrowding in
a prison, or in a particular part of it, might be such as to be in itself
inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work,
education, sport, etc.) is of crucial importance for the well-being of
prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly
months, locked up in their cells, and this regardless of how good material
conditions might be within the cells. The CPT considers that one should aim at
ensuring that prisoners in remand establishments are able to spend a reasonable
part of the day (8 hours or more) outside their cells, engaged in purposeful
activity of a varied nature ...
48. Specific mention should be made of outdoor
exercise. The requirement that prisoners be allowed at least one hour of
exercise in the open air every day is widely accepted as a basic safeguard ...
It is also axiomatic that outdoor exercise facilities should be reasonably
spacious ...
49. Ready access to proper toilet facilities and the
maintenance of good standards of hygiene are essential components of a humane
environment ...
50. The CPT would add that it is particularly
concerned when it finds a combination of overcrowding, poor regime
activities and inadequate access to toilet/washing facilities in the same
establishment. The cumulative effect of such conditions can prove extremely
detrimental to prisoners.
51. It is also very important for prisoners to
maintain reasonably good contact with the outside world. Above all, a prisoner
must be given the means of safeguarding his relationships with his family and
close friends. The guiding principle should be the promotion of contact with
the outside world; any limitations upon such contact should be based
exclusively on security concerns of an appreciable nature or resource
considerations ...”
Extracts from the 7th General Report [CPT/Inf (97) 10]
“13. As the CPT pointed out in its 2nd General
Report, prison overcrowding is an issue of direct relevance to the Committee’s
mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails
cramped and unhygienic accommodation; a constant lack of privacy (even when
performing such basic tasks as using a sanitary facility); reduced out-of-cell
activities, due to demand outstripping the staff and facilities available;
overburdened health-care services; increased tension and hence more violence
between prisoners and between prisoners and staff. This list is far from
exhaustive.
The CPT has been led to conclude on more than one occasion that
the adverse effects of overcrowding have resulted in inhuman and degrading
conditions of detention ...”
Extracts from the 11th General Report [CPT/Inf (2001) 16]
“28. The phenomenon of prison overcrowding continues
to blight penitentiary systems across Europe and seriously undermines attempts
to improve conditions of detention. The negative effects of prison overcrowding
have already been highlighted in previous General Reports ...
29. In a number of countries visited by the CPT,
particularly in central and eastern Europe, inmate accommodation often consists
of large capacity dormitories which contain all or most of the facilities used
by prisoners on a daily basis, such as sleeping and living areas as well as
sanitary facilities. The CPT has objections to the very principle of such
accommodation arrangements in closed prisons and those objections are
reinforced when, as is frequently the case, the dormitories in question are
found to hold prisoners under extremely cramped and insalubrious conditions ...
Largecapacity dormitories inevitably imply a lack of privacy for prisoners in
their everyday lives ... All these problems are exacerbated when the numbers
held go beyond a reasonable occupancy level; further, in such a situation the
excessive burden on communal facilities such as washbasins or lavatories and
the insufficient ventilation for so many persons will often lead to deplorable
conditions.
30. The CPT frequently encounters devices, such as
metal shutters, slats, or plates fitted to cell windows, which deprive
prisoners of access to natural light and prevent fresh air from entering the
accommodation. They are a particularly common feature of establishments holding
pre-trial prisoners. The CPT fully accepts that specific security
measures designed to prevent the risk of collusion and/or criminal activities
may well be required in respect of certain prisoners ... [E]ven when such
measures are required, they should never involve depriving the prisoners
concerned of natural light and fresh air. The latter are basic elements of life
which every prisoner is entitled to enjoy ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE APPLICANT’S CONDITIONS OF DETENTION
Under Article 3 of the Convention the applicant
complained that the conditions of his detention in the Inter-District Temporary
Detention Centre and remand prison IZ-47/1 in St Petersburg from 17 January
2000 to 21 November 2003 had been deplorable. Article 3 provides as
follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Submissions of the parties
The Government argued that the complaint about
the applicant’s stay in the Detention Centre had been made too late and that
the applicant had failed to exhaust the available domestic remedies in
connection with these grievances. They conceded nevertheless that the remand
prison had been overcrowded and there had been a violation of the Convention on
that account.
The applicant maintained his complaints.
B. The Court’s assessment
1. Admissibility
(a) Exhaustion of domestic remedies
In as much as the Government claim that the
applicant has not complied with the rule on exhaustion of domestic remedies,
the Court recalls its conclusions in the recent Ananyev and Others v. Russia
judgment (nos. 42525/07 and 60800/08, §§ 100-19, 10 January 2012) that the Russian legal system does
not dispose of an effective remedy that could be used to prevent the alleged
violation or its continuation and provide the applicant with adequate and
sufficient redress in connection with a complaint about inadequate conditions
of detention. Accordingly, the Court finds that this part of the application
cannot be rejected for non-exhaustion of domestic remedies.
(b) Simultaneous examination of the complaints about
the conditions of detention in both detention facilities
The Court notes the essentially continuous
character of the applicant’s detention in the Inter-District Temporary Detention
Centre and remand prison IZ-47/1 until at least November 2000. Even though the
applicant was officially transferred to IZ-47/1 on 28 January 2000, he remained
in the Detention Centre for intermittent ten-day periods for a further ten
months pending criminal investigation of his case. The Court observes that the
applicant’s dissatisfaction in respect of both facilities was directed at the
problem of overcrowding and the general lack of living space. Accordingly, the
Court finds that the whole period of time from the applicant’s arrest on
17 January 2000 to his transfer to solitary confinement on
21 November 2003 should be regarded as a "continuing situation"
for the purposes of calculation of the six-month time-limit (see Igor Ivanov
v. Russia, no. 34000/02, § 30, 7 June 2007; Benediktov v. Russia,
no. 106/02, § 12, 10 May 2007; and Guliyev v. Russia, no. 24650/02,
§ 31, 19 June 2008, and compare to Maltabar and Maltabar v. Russia,
no. 6954/02, §§ 82-84, 29 January 2009; Aleksandr Matveyev v. Russia,
no. 14797/02, §§ 67-68, 8 July 2010). The Court finds that the applicant
lodged his complaints about the conditions of detention during that period on
21 April 2003. It follows that the Government’s objection in this respect must
be rejected as well.
(c) Compliance with other admissibility criteria
On the basis of the material submitted, the
Court observes that these complaints are not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes
that this part of the case is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The Court observes that the applicant did not
support his allegations about the conditions of detention with any particular evidence.
The Government submitted no information regarding the applicant’s detention in
the temporary detention centre.
In this connection, it
should be noted that Convention proceedings do not in all cases lend themselves
to a rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that
allegation), because in certain instances the respondent Government alone have access
to the information capable of corroborating or refuting the applicant’s
allegations. A failure on the Government’s part to submit such information
without a satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of these allegations (see Timurtaş v. Turkey,
no. 23531/94, §§ 66 and 70, ECHR 2000-VI).
Having regard to the above principles and the
fact that the Government did not submit any convincing relevant data, the Court
accepts the applicant’s argument that his cell in the temporary detention centre
was severely overcrowded.
Having examined the documents submitted by the
parties, the Court finds that the case file contains sufficient documentary
evidence to confirm the applicant’s allegations of severe overcrowding in
remand prison IZ-47/1 in St Petersburg. It follows from the Government’s
submissions that the cells in which the applicant was detained measured eight
square metres, except for one cell which measured ten square metres. At all
times there were no less than three inmates and most of the time up to seven
inmates in the cells
The existence of a deplorable state of affairs
may furthermore be inferred from the information contained in Order no. 7 of
the Federal Service for the Execution of Sentences of 31 January 2005 (see
paragraphs 63-65 above), which expressly acknowledges the issue of
overcrowding in the remand prison concerned in 2004.
The Court also observes that in its judgments in
the cases of Andrey Frolov v. Russia, no. 205/02, §§ 43-51, 29
March 2007; Gusev v. Russia, no. 67542/01, §§ 51-61, 15 May 2008; Seleznev
v. Russia, no. 15591/03, §§ 38-48, 26 June 2008; Lutokhin v.
Russia, no. 12008/03, §§ 56-59, 8
April 2010; and Petrenko v. Russia, no. 30112/04, §§ 35-41, 20 January 2011 it has previously examined the
conditions of detention in IZ-47/1 in 2000-03 and found them to be incompatible
with the requirements of Article 3 of the Convention on account of severe
overcrowding.
Finally, the Government acknowledged that the
conditions in the remand centre were such that the applicant’s rights under
Article 3 of the Convention were breached.
In these circumstances, the Court accepts that
the problem of overcrowding existed in the remand prison at the time the
applicant was detained there.
The Court has frequently found a violation of Article
3 of the Convention on account of a lack of personal space afforded to
detainees (see Khudoyorov v. Russia,
no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et
seq., 16 June 2005; Novoselov v. Russia,
no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit
v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99,
§§ 97 et seq., ECHR 2002-VI; and Peers v.
Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III).
Having regard to its
case-law on the subject and the material submitted by the parties, the Court sees
no fact or argument capable of persuading it to reach a different conclusion in
the present case. Although in the present case there is no indication that
there was an intention of humiliating or debasing the applicant, the Court
finds that the fact that the applicant had to spend three years, ten months and five days in overcrowded cells
in the Inter-District Temporary Detention Centre and remand prison IZ-47/1 was
itself sufficient to cause distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention, and to arouse in him
feelings of fear, anguish and inferiority capable of humiliating and debasing
him.
. In
view of the above, the Court does not consider it necessary to examine the
remainder of the parties’ submissions concerning other aspects of the
conditions of the applicant’s detention during the period in question.
There has therefore been a violation of Article
3 of the Convention as the Court finds the applicant’s detention to have been
inhuman and degrading within the meaning of this provision.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE APPLICANT’S CONDITIONS OF TRANSPORTATION
The applicant was also dissatisfied with the
conditions of his transportation to and from the court-house during his
detention in remand prison IZ-47/1. The Court will examine this complaint under
Article 3 of the Convention, the relevant text of which is set out above.
A. Submissions of the parties
The Government denied that there had been any
issues with the conditions of the transportation.
The applicant disagreed and maintained his
complaints.
B. The Court’s examination
1. Admissibility
The Court notes that this part of the case 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.
2. Merits
The Court notes that the applicant submitted a detailed
and coherent description of the conditions of his transportation, whilst the
Government informed the Court about the dates of the applicant’s journeys and the
types of prison van and gave a general description of the journeys, but failed
to submit any specific information concerning the number of inmates in the
prison vans on each of the journeys, the original documentation on the catering
arrangements on these days and the real length of each of the daily journeys.
The Court observes that in certain instances the
respondent Government alone have access to information capable of firmly
corroborating or refuting allegations under Article 3 of the Convention and
that a failure on a Government’s part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicant’s allegations (see, for example, Ahmet Özkan and Others v. Turkey,
no. 21689/93, § 426, 6 April 2004). Thus, the first issue to be examined is
whether on the basis of the facts of the present case the Government’s failure
to submit copies of the relevant prison documentation has been properly
accounted for.
In this connection, the Court would note that
the destruction of the relevant documents due to expiry of the time-limit for
their storage cannot in itself be regarded as a satisfactory explanation for
the failure to submit them. The Court also has to look at the timing of that
act as well as other relevant factual circumstances. In particular, regard
should be had to whether the authorities appeared to have been acting with due
care in this respect (see, for example, Oleg Nikitin v.
Russia, no. 36410/02, §§ 48-49, 9 October
2008).
Having examined the copies of materials
submitted by the Government, the Court notes that they reveal that the
authorities did not display sufficient diligence in handling the relevant
prison documentation in the Strasbourg proceedings. The description of the logs
in the document referred to by the Government to confirm the destruction of the
prison documentation recording the number of inmates transported on each
occasion does not fit the circumstances of the case in that the logs in
question refer to the period from January to the end of August 2000, whilst the
trips in the present case took place in 2002 and 2003.
Accordingly, the Court finds that the Government
have not accounted properly for their failure to submit detailed information
supported by copies of the original documentation concerning the applicant’s
trips, with the result that the Court may draw inferences from their conduct
(see Novinskiy v. Russia, no. 11982/02, §§ 101-03, 10 February 2009). In
view of the above, the Court will examine the issue concerning the conditions
of transportation from and to that remand prison on the basis of the applicant’s
submissions (see Igor Ivanov, cited above, §§ 34-35).
The Court notes that the applicant was
transported in prison vans occupied by a number of inmates which was twice that
of the vans’ design capacity. He was transported in cramped conditions on no
fewer than thirty-two occasions over a period of one year, two months and
four days. On those days he was not provided with adequate nutrition and was
confined in unacceptable conditions at the assembly section in the remand
centre. The above treatment occurred during his trial, that is when he most
needed his powers of concentration and mental alertness (see Starokadomskiy
v. Russia, no. 42239/02, §§ 53-60, 31 July 2008).
The Court takes the view that the above
considerations, taken cumulatively, are sufficient to warrant the conclusion
that the treatment to which the applicant was subjected exceeded the minimum
level of severity and constituted inhuman and degrading treatment within the
meaning of Article 3 of the Convention (see Trepashkin v. Russia (no. 2), no. 14248/05, §§ 131-36, 16
December 2010). There has therefore been a violation of that Convention provision.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The applicant complained that various State
officials had repeatedly breached his presumption of innocence before he was
found guilty by a court. He referred to publications in the newspapers Moskovskiy
Komsomolets, Komsomolskaya Pravda, Nevskoye Vremya and Peterburg
Ekspress. The Court will examine this grievance under Article 6 § 2 of
the Convention, which provides as follows:
“2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”
A. The parties’ submissions
The Government contested that argument, denying
the State’s responsibility for the publications in private media. They accepted
that officials of the prosecutor’s office of St Petersburg may have given out
information to the press during the interviews and did not contest the accuracy
of the statements published by the media and referred to by the applicant.
However, the Government did not consider that these statements disclosed any
appearance of a violation of the applicant’s right to presumption of innocence.
The applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that the applicant’s complaints
in respect of the publications made in 1999 and 2000 were introduced in April
2003. It follows that in respect of this part of the application the applicant
did not comply with the six-month rule. It should therefore be rejected pursuant
to Article 35 §§ 1, 3 and 4 of the Convention.
The Court considers on the other hand that his
complaint about the publications made in 2002 and 2003 (see paragraphs 53-56)
is not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
The Court reiterates that Article 6
§ 2 is aimed at preventing the undermining of the fairness of
a criminal trial by prejudicial statements made in relation to those
proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6
is one of the elements of the fair criminal trial that is required by paragraph
1 of that Convention (see Allenet de Ribemont v. France, 10
February 1995, § 35, Series A no. 308). It prohibits the premature expression
by the tribunal itself of the opinion that the person “charged with a criminal
offence” is guilty before he has been so proved according to law (see Minelli
v. Switzerland, 25 March 1983, § 37, Series A no. 62) but it also covers
statements made by other public officials, including police officers or
prosecutors, about pending criminal investigations which could encourage the
public to believe the suspect to be guilty and to prejudge the assessment of
the facts by the relevant judicial authority (see Allenet de Ribemont, cited
above, § 41; Daktaras
v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X; Butkevičius
v. Lithuania, no. 48297/99, § 49, ECHR 2002-II; Y.B. and
Others v. Turkey, nos. 48173/99 and 48319/99, §§ 46-51, 28 October 2004 and
Samoilă and Cionca v. Romania, no. 33065/03, §§ 91-101, 4 March
2008).
It has been the Court’s consistent approach
that the presumption of innocence will be violated if a judicial decision or a
statement by a public official concerning a person charged with a criminal
offence reflects an opinion that he is guilty before he has been proved guilty
according to law. It suffices, even in the absence of any formal finding, that
there is some reasoning suggesting that the court or the official regards the
accused as guilty. A fundamental distinction must be made between a statement
that someone is merely suspected of committing a crime and a clear declaration,
in the absence of a final conviction, that an individual has committed the
crime in question. The Court would underline that Article 6 § 2 cannot prevent
the authorities from informing the public about criminal investigations in
progress, but it requires that they do so with all the discretion and
circumspection necessary if the presumption of innocence is to be respected (Karakaş
and Yeşilırmak v. Turkey, no. 43925/98, § 50, 28 June 2005
and Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05
and 36085/05, § 225, 26 July
2011). The Court has thus consistently emphasised the importance of the
choice of words by public officials in their statements before a person has
been tried and found guilty of a particular criminal offence (see Böhmer
v. Germany, no. 37568/97, §§ 54 and 56, 3 October 2002; Nešťák
v. Slovakia, no. 65559/01, §§ 88 and 89, 27 February 2007 and Karadağ
v. Turkey, no. 12976/05, §§ 62-65, 29 June 2010).
Turning to the facts of the present case, the
Court observes that, before the verdict at the first level of jurisdiction in
the applicant’s case on charges of multiple murder and robbery, a number of
newspapers published interviews with S.Z. and Yu. D., the policemen of the
Frunzenskiy District Department of the Interior, and their superior A.K., the
head of the department in charge of homicide investigations in that police
department, commenting on the merits of the charges made against the applicant
during the trial. In this connection, the Court notes the Government’s argument
to the effect that the State could not be held responsible for material published
in private media. However, it was not in dispute between the parties that the
statements referred to by the applicant had indeed been made and that they had
been authored by the officials in question, who apparently never objected to
the publication of these statements before the delivery of the first-instance
judgment in the case. In view of the above, the Court considers that the
contents of the interviews are attributable to the respondent State.
As regards the contents of the statements, the
Court notes that police agents S.Z., Yu. D. and A.K. all stated in affirmative
terms that the applicant had committed the crimes in question. In particular,
S.Z. stated that “[the applicant] killed old ladies, stole their pasta and the
same evening was eating this pasta with his family” (see paragraph 53); Yu.D.
stated that “[the applicant] was dreadful maniac” and that “he has killed [the
elderly people] for a dime” (see paragraph 55); A.K. stated that the applicant
was “responsible for over sixteen murders and over fifty robbery episodes” (see
paragraph 54). Their statements were not limited to describing the status
of the pending proceedings or a “state of suspicion” against the applicant but
represented, as an established fact, without any qualification or reservation,
that he had committed the offences.
The Court considers that those statements made by
public officials amounted to a declaration of the applicant’s guilt and
prejudged the assessment of the facts by the relevant judicial authority. Given
that the police officers who commented could be seen as representing the
prosecuting authorities when interviewed, they should have exercised particular
caution in their choice of words when describing the criminal proceedings
pending against the applicant (see, mutatis
mutandis, Khuzhin
and Others v. Russia, no. 13470/02, § 96, 23 October
2008). The Court considers that the statements must have encouraged the public
to consider the applicant a murderer before he had been proved guilty according
to law. Accordingly, the Court finds that there has been a breach of the
presumption of innocence in his case.
There has therefore been a violation of Article
6 § 2 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Finally, the applicant submitted a number of
other complaints under Articles 3, 5, 6 and 8 of the Convention relating to his
arrest, detention and his trial. However, having regard to all the material in
its possession and in so far as the matters complained of are within its competence,
the Court finds that the applicant’s complaints do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be rejected as
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 300,000 euros (EUR) in
respect of non-pecuniary damage allegedly sustained.
The Government disagreed and invited the Court
to reject the claim as excessive.
The Court considers that the applicant must
have sustained stress and frustration as a result of the violations found.
Making an assessment on an equitable basis, the Court awards the applicant EUR
15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The applicant also claimed EUR 2,200 for legal
fees and costs incurred in the proceedings before the Court.
The Government contested the claim as
unsubstantiated and generally excessive.
Regard being had to the
information in its possession and the Government’s submissions, the Court finds
it appropriate to grant the applicant EUR 1,350, which represents the requested
sum, less EUR 850, already paid to the applicant’s lawyer in legal aid.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s complaints
concerning the conditions of his detention and transportation and the complaint
about the breach of the presumption of innocence admissible and the remainder
of the application inadmissible;
2. Holds that there has
been a violation of Article 3 of the Convention on account of the applicant’s
conditions of detention;
3. Holds that there has been a violation of
Article 3 of the Convention on account of the applicant’s conditions of
transportation;
4. Holds that there has been a violation of
Article 6 § 2 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,350 (one thousand three hundred and
fifty euros), plus any tax that may be chargeable to the applicant, in respect
of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and
notified in writing on 6 November 2012, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
