Постановление Страсбург, 8 июля 2010 года Перевод на русский язык Николаева Г. А

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

Christos Rozakis, President,

Nina {Vajic} <*>,

--------------------------------

<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 17 June 2010,

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

2. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that he had been ill-treated after his arrest, that the conditions of his detention on remand had been appalling and that the criminal proceedings against him had been unfair. By letter of 2 December 2003 the applicant also complained that placing him in the disciplinary cells of OYa-22/7 had restricted his rights.

4. On 13 October 2005 the President of the Third Section decided to communicate the complaints about the conditions of the applicant's detention on remand 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 case was subsequently transferred to First Section for examination.

in the case file records

7. The arrest report drawn up on 15 April 2000 at 1 p.m. contains the typed description of the applicant's procedural rights, in particular "the right to be represented by a lawyer from the moment of drawing up of the arrest report" and "the right not to incriminate oneself". It was signed by the applicant and also includes the applicant's statement that he "wishes to give evidence in the presence of counsel G.". Lastly, the report contains the following hand-written statement, also signed by the applicant:

"I did commit, together with V., the murder of P. on 5 April 2000."

8. A record of the applicant's questioning on 15 April 2000, signed by the applicant and counsel G., according to which the applicant was questioned from 1.15 to 4 p.m. in the presence of counsel G., contains a detailed description of the murder and robbery of P.

9. According to a subsequent record of 17 April 2000 signed by the applicant and counsel G., the applicant "confirmed his testimony contained in the record of 15 April 2000".

10. According to the records of subsequent interviews, also signed by the applicant and his representative, the applicant refused to give further evidence and stated that he confirmed his confession, but only in part.

11. The records do not contain any indication of or complaints about coercion or ill-treatment.

12. On 17 April 2000 the prosecutor of the Vyborgskiy District of St Petersburg authorised the applicant's further detention.

13. According to the applicant, he was transferred to remand prison IZ-45/4 in St Petersburg (SIZO No. 4).

14. The Government submitted that the transfer had taken place on 20 April 2000.

16. The applicant was escorted for questioning to an office, where he was fettered to the floor with handcuffs and put in an uncomfortable sitting position. The applicant was then beaten up by men who did not state their names.

17. The applicant submitted that they had beaten him "professionally", inflicting blows in such a way as to leave no traces and using, in particular, plastic bottles filled with water. They had also held a knife to his throat, threatened him with death and promised to chop his head off. At first, the officers had beaten the applicant without asking him to do or say anything, but after some time they had invited him to confess. When the applicant refused, they had shown him a written statement of his friend V., who had been arrested in connection with the same criminal case and had "confessed to things he had never done".

18. The applicant submitted that, being demoralised and fearing for his life, he had confessed to a murder and a robbery but had refused to incriminate V.

19. The applicant submitted that he had told his counsel about the ill-treatment but his counsel had failed to react.

20. It does not appear that the applicant requested medical assistance or complained to any domestic authority in connection with the alleged ill-treatment.

22. By the same decision it acquitted him on a separate count of theft because the prosecution had been based solely on the applicant's confession and the victim's statement. Referring to the record of the applicant's psychiatric-psychological examination, the court ordered his compulsory out-patient psychiatric treatment for drug addiction.

23. The applicant was represented at the trial by counsel G. Throughout the trial they consistently defended the view that the victim had in fact been killed by a third person and not by the applicant.

24. The court rejected this argument by reference to the oral evidence given by three witnesses and a police officer in charge of the investigation and also to the discrepancies and contradictions in the applicant's own statements.

25. The court further cited the applicant's and his co-accused's statements from the pre-trial stage describing in detail the killing and robbery, and held that they "corresponded to the factual circumstances of the case in part, concerning the preparation and execution of the robbery of the victim P. and his especially cruel murder by [the applicant]". In finding the applicant guilty, the court also referred to various pieces of evidence, including, in particular, statements from four witnesses, the crime scene inspection report, three identification parade reports, a record of the identification of the stolen goods, seizure records, forensic medical and biological reports and the applicant's explanations about the blood spots on his jacket.

26. During the trial the defence argued that the applicant had been forced by the authorities to confess, with threats of violence. In this respect, the court established the following:

"As to [the applicant's] allegations that, by threatening him with violence and even death, the police officers had forced him to confess to having killed and robbed P., witness Pe. [the investigator] stated that no violence or threats were applied to [either] co-accused throughout their arrest and questioning. They gave evidence voluntarily, on some occasions in the presence of their defence counsel.

In this connection Matveyev [the applicant] submitted at a court hearing that Pe. had never threatened him at the pre-trial investigation and that he [the applicant] did not know the names of the police officers who had threatened him and would not be able to identify them."

27. According to the minutes of the hearing, the applicant and his counsel did not object to the conclusion of the trial in the absence of witness M. The hearing transcript also contains no indication that the applicant or his defence counsel requested the court to summon witness K.

28. It appears that some time after the trial the defence changed their counsel.

29. The applicant, his newly appointed counsel and his mother, admitted to the appeal proceedings as a "public defender", appealed against the conviction. In his appeal submissions, the applicant's counsel alleged, among other things, that the trial court had failed to summon and examine witnesses K. and M.; that in ordering the applicant's compulsory medical treatment it had failed to properly take into account his state of health; and that it should not have based the applicant's conviction on his forced pre-trial statements and referred to the statement of the investigator in rejecting his submission that the victim had been killed by a third person. The applicant's counsel further contested at length the way in which the trial court had assessed the evidence before it. In his own appeal submissions, the applicant alleged that he had not killed P.
2. Decision on the applicant's objections

to the transcript of the Court hearings

32. The court held, in particular, that:

"Having analysed the evidence gathered in the case in its entirety, the first-instance court reached a well-founded conclusion as to [the applicant]'s and [V.'s] guilt in the crimes committed by them... [,] having provided sufficient reasons for its conclusions concerning their guilt and the classification of the defendants' acts.

The case was investigated and examined by the [trial] court without any significant violations of the provisions of the RSFSR CCrP which could have had prejudiced the court's judgment, including the issue of admissibility of evidence."

34. The Government submitted, with reference to prison records, that the applicant's detention in SIZO No. 4 had lasted from 20 April 2000 to 7 September 2001 and from 23 January 2002 to 13 March 2002, whilst his detention in SIZO No. 3 had taken place in between the mentioned terms, from 10 September 2001 to 21 January 2002.

36. At all times the prison was heavily overcrowded. His cell measured 20 square metres and was meant to accommodate twelve inmates but actually housed between forty and fifty. The bunk beds in the cell had three "levels", the applicant's sleeping place being on the top level, right under the ceiling. The inmates slept in turns, two or three persons sharing one bed at a time. The applicant slept on a worn-out mattress and was not provided with any bedding. Because the detainees shared beds, they often contracted skin infections and had lice. The inmates had a one-hour outside walk per day. The lavatory pan was separated from the living area by a makeshift partition. As such an arrangement was prohibited by the prison authorities, it was ripped down in the course of every routine check and then rebuilt by the inmates until the next check.

37. The windows had double bars and metal shutters which let almost no natural light in. The electric lights were always switched on. For the same reason there were problems of fresh air, especially in summer when it was very hot. The windows had no glass and in winter the detainees covered them in order to avoid freezing, so there was even less fresh air.

38. The quality of the food was deplorable. The inmates were sometimes given out-of-date biscuits from humanitarian supplies.

39. The applicant could not wash himself properly because the "washing schedule" (once every 8 - 10 days) was rarely respected by the prison authorities. Furthermore, the shower facility, a former morgue, was in a disgusting state.

40. On several occasions tuberculosis or hepatitis sufferers and mentally disturbed inmates had been placed in the applicant's cell. The applicant submitted that although the detainees underwent HIV and AIDS tests upon their arrival in the detention facility, they were informed of the results with a considerable delay.

41. The applicant alleged that he suffered from epileptic fits and nocturnal enuresis and could not count on adequate medical assistance.

42. He further stated that the regular searches in the cells, assisted by members of the special forces (спецназ), were usually accompanied by violence, especially throughout 2000. On one such occasion the applicant's fellow detainees were ordered to leave the cell and the applicant was ordered to hand over any prohibited items. When he refused, he was ordered to kneel down, which he again refused to do because it was humiliating. In response, persons wearing masks beat him up.

43. It does not appear that the applicant complained about the alleged incident or requested medical assistance at the time.

44. The Government disagreed with the above description and submitted that the applicant had been provided with his own sleeping place, bedding and cutlery. They also submitted that all original documentation relating to the periods in question had been destroyed. They submitted that the cells in the prison had had windows measuring between 0.9 and 1 metre and had been equipped with light bulbs. They admitted that the windows had been covered with metal shutters until 1 April 2003. The inmates had been able to wash themselves once a week and also to wash their personal things. The Government denied the applicant's allegations concerning the detention of mentally disturbed persons and persons infected with tuberculosis in his cell, and submitted that such a situation was impossible, since the applicable law did not allow it. There may have been HIV infected persons in the applicant's cell, but that was not in breach of the domestic law or the European Convention on Human Rights. The Government also submitted that the prison administration had taken measures against the insects in the cells and that the quality of the food had been in accordance with all relevant standards.

46. The Government disagreed and submitted that between 10 and 12 September 2001 the applicant had been detained in cell No. 417, which measured 14.98 square metres and was equipped with two-tier bunk beds for ten persons. From 12 September 2001 to 21 January 2002 he was detained in cell No. 414, measuring 15 square metres and equipped with ordinary beds for eight persons. The original documentation concerning the number of inmates in these cells at the relevant time was destroyed on 20 February 2004, the regulatory time for its storage having elapsed. The Government submitted that the conditions of detention could not have been worse than those required by the Rules on the prison regime in pre-trial detention centres (as approved by Ministry of Justice Decree No. 148 of 12 May 2000 - see the Relevant Domestic Law section below). The Government argued that the cells had been properly lit, ventilated, and disinfected and had generally been in good condition.

48. Upon arrival, the applicant was placed in a disciplinary cell for protesting about serving his sentence in the Novgorod Region instead of the Yaroslavl Region as the authorities had allegedly promised him.

49. He was kept in the disciplinary cell from 19 March to 22 June and from 19 September to 19 November 2002. According to the applicant, the cell measured around 25 square metres and held six prisoners. He was not allowed to have any personal belongings. He could shower once a week and had a one-hour walk per day. There was no table, bench or washbasin and the applicant was not provided with a mattress or bedding.

50. Throughout his confinement in the disciplinary cell the applicant was prohibited from sending and receiving letters. He was also banned from smoking, reading and receiving parcels.

51. By letter dated 28 June 2002 the head of the correctional colony OY-22/7 informed the applicant's father that the applicant was detained in the disciplinary cell and that during his detention there all correspondence and family visits were prohibited.

52. The applicant submits that from 22 June to 19 September 2002 he was held in a "safe cell" (безопасное место) where correspondence was allowed and the restrictions imposed in the disciplinary cell did not apply.

53. On 23 July 2003 he was transferred to correctional colony YN-88/3 in Uglich in the Yaroslavl Region.
II. Relevant domestic law
A. Rules on the prison regime in pre-trial detention centres

(as approved by Ministry of Justice Decree

No. 148 of 12 May 2000)
54. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place; bedding, including a 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 had no clothes of his own).

55. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches to seat the number of inmates detained there, sanitation facilities, running water and lighting for use in the daytime and at night.

56. Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia.

57. 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 linen after taking their shower.

58. 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

60. 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.

61. Amongst those affected, the programme mentions pre-trial detention centre SIZO No. 3. In particular, the programme states that on 1 July 2004 the detention centre had a capacity of 1,109 inmates and in reality housed 1,562 detainees, in other words, 48.9% more than the permitted number. The programme also mentions SIZO No. 4, stating that on 1 July 2004 the detention centre had a capacity of 1,032 inmates but actually housed 1,362 detainees, or 31.9% more than the permitted number.
III. Relevant council of Europe documents
62. 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 signi-cantly. 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.