Andrey Aleksandrovich ZHELEZOVSKIY v Russia - 1752/07 [2009] ECHR 1577 (1 October 2009)

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The European Court of Human Rights (First Section), sitting on 1 October 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Andrey Aleksandrovich Zhelezovskiy, is a Russian national who was born in 1969 and is detained in Kemerovo.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 February 2002 Kh.’s body was discovered in his flat. The Tsentralniy District Prosecutor’s Office of Kemerovo opened a criminal investigation into Kh.’s death.

On 19 February 2004 the Tsentralniy District Court of Kemerovo authorised the applicant’s detention pending investigation and trial. The court referred to the seriousness of the charges, negative references as to the applicant’s character and his prior conviction for a serious offence.

On 4 June 2004 the District Court extended the applicant’s detention until 9 September 2004. The court noted as follows:

“The criminal investigation cannot be completed by 9 June 2004 due to the complexity of the case (investigation into twelve offences, fifteen victims, and nine defendants) and substantial period of time required for the study of the case materials by the defendants...

There are no circumstances that would allow the release [of the applicant] or the replacement of detention with another restrictive measure. He is charged with a serious offence for which there can only be a custodial sentence in the event of conviction. The references concerning the [applicant’s] character are extremely negative.

The court considers that if released the applicant may abscond, interfere with establishment of the truth by putting pressure on witnesses, or commit new crimes.”

On 28 September the Kemerovo Regional Court scheduled the opening of the trial for 11 October 2004. The court further noted that it did not discern any grounds for release in respect of the applicant and five other defendants and that they should remain in custody pending trial.

On 24 February 2005 the Regional Court extended the applicant’s detention until 24 May 2005. The court issued the detention order in respect of the applicant and five other defendants, noting as follows:

“[The defendants] are charged with serious offences... If released, they might abscond and put pressure on victims and witnesses in order to avoid criminal liability.”

On 15 May 2005 the Regional Court extended the applicant’s detention until 24 August 2005. The court issued the detention order in respect of the applicant and five other defendants, noting as follows:

“[The defendants] are charged with serious offences... If released, they might abscond and put pressure on victims and witnesses in order to avoid criminal liability.

The case has been pending before the court for over six months. The hearing of the matter has not been completed. The court has not examined all the evidence submitted by the parties and is therefore unable to determine whether the defendants are innocent or guilty in respect of the charges. The defendants’ release might prevent the objective examination of other evidence.

Defendant S.’s allegation concerning his need for medical assistance has not been confirmed by any documents.

Defendants A. and A.’s reference to their need to take care of their daughter is not convincing since their daughter is not a minor.

Defendant G.’s argument that the evidence in court proves her innocence is premature.

In view of the above, the court considers it necessary to extend [the defendants’] detention.”

On 22 August and 6 December 2005 and 15 February and 22 May 2006, the Regional Court further extended the defendants’ pre-trial detention until 24 December 2005, 24 February and 24 August 2006 respectively. The court reiterated verbatim the reasoning substantiating the previous detention order.

On 2 August 2006 the Regional Court extended the defendants’ detention until 24 November 2006 for the same reasons as before. On 9 November 2006 the Supreme Court of Russia upheld the said decision on appeal. Neither the applicant nor his counsel attended the appeal hearing. The prosecutor was present and made oral submissions to the court.

On 8 November 2006 the Regional Court extended the defendants’ detention until 24 February 2007. In response to the applicant’s request for release, the court noted as follows:

“[The applicant], S. and Ch. are charged with serious offences against human life. Since they are single and do not have children and S. and Ch. are unemployed, the court considers that they might abscond...

The grounds for the defendants’ detention, including those in respect of [the applicant] have not ceased to exist. “

On 21 February 2007 the Regional Court extended the applicant’s detention until 24 May 2007. On 13 June 2007 the Supreme Court upheld the said extension on appeal.

On 6 March 2007 the Supreme Court upheld the decision of 8 November 2006 on appeal. Neither the applicant nor his counsel attended the appeal hearing. The prosecutor was present and made oral submissions to the court.

On 22 May 2007 the Regional Court extended the applicant’s detention until 24 August 2007. The court reiterated verbatim the reasoning used in the court order of 8 November 2006. The applicant did not appeal.

It appears that his detention was subsequently extended on several occasions until August 2008.

On 19 August 2008 the Regional Court extended the applicant’s detention until 24 November 2008. The court reiterated verbatim the reasoning used in the court orders of 8 November 2006 and 22 May 2007. The applicant did not appeal.

On 18 November 2008 the Regional Court extended the applicant’s detention until 24 February 2009. The applicant appealed, asking to be released. He argued that he would not abscond, given that he needed to take care of his elderly mother, who was ill.

On 22 January 2009 the Supreme Court upheld the court order of 18 November 2008 on appeal. The applicant and the prosecutor were present and made submissions to the court. The applicant’s counsel did not attend. The court dismissed the applicant’s arguments, noting that his sister was capable of providing adequate care for their mother.

It appears that the criminal proceedings against the applicant are still pending and the applicant remains in custody awaiting consideration of the criminal charges against him.

On 27 February 2004 the applicant was taken to Kemerovo no. IZ-42/1 remand prison. On arrival he was placed in a temporary detention cell («этапное помещение») and then was transferred to cell no. 84. According to the applicant, only inmates with prior convictions were detained with him. Inmates K. and Sh. allegedly bullied and beat the applicant for the next three days to make him confess to the murder.

On 3 or 4 March 2004 the applicant was taken to the prosecutor’s office for a crime reconstruction, which was videotaped. According to the applicant it could clearly be seen from the tape that he had numerous bruises and contusions on his face.

The applicant’s attempts to bring his complaint about the beatings to the attention of the competent domestic authorities were to no avail. All of them were allegedly ignored.

The applicant is currently detained in cell no. 83. He provides the following description of the conditions of his detention there.

The applicant is detained in a cell measuring 35 sq. m together with 20-30 other inmates. They have the right to an hour’s exercise. If the temperature outside falls below minus 20⁰C, the walk is cancelled and the inmates have to spend twenty-four hours a day in the cell.

There is no regular water supply and sometimes the inmates have only thirty litres of water per day to satisfy all their needs. There is no access to fresh air in the cell.

The toilet is located opposite the dining table. It is not separated from the other parts of the cell.

On 28 June 2004 a journalist of RTR, a national TV channel, questioned the applicant with regard to Kh.’s murder. The questioning was videotaped and later broadcast on several occasions by RTR in the programme called ‘The Honest Detective’ (‘Честный детектив’). According to the applicant, the presenter of the programme referred to him as an assassin for an organised criminal group committing property crimes.

The issues concerning the defendants’ detention pending investigation and trial are governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001 as amended).

“Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).

When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

After arrest the suspect is placed in custody “pending investigation”. The period of detention pending investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).

From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “pending trial”). The period of detention “pending trial” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).

An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide on it within three days of its receipt (Article 108 § 11).

Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.

The applicant complains under Article 3 of the Convention about conditions of his detention. He further complains that while in detention he was beaten up on several occasions by other inmates and subjected to psychological pressure by the investigators.

The applicant complains under Article 5 §§ 1 (c), 2, 3 and 4 that he did not have access to the materials submitted by the prosecutor when he was remanded in custody on 19 February 2004; that his pre-trial detention has been repeatedly extended without sufficient and relevant reasons; and that the Supreme Court of Russia considered his appeals against those extensions in his absence and in the absence of his counsel and belatedly.

The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him are unfair and unreasonably long.

The applicant complains under Article 6 § 2 of the Convention that a national TV channel broadcast a programme which portrayed him as a professional killer.

The applicant complains under Article 6 § 3 (b) and (c) that the court had in practice refused to provide him with an opportunity to familiarise himself with the record of the court hearing and that his counsel did not do anything about this.

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Furthermore, the Court considers that an issue arises as to whether or not a remedy existed to which the applicant could turn in respect of the above grievance. It falls to be examined under Article 13 of the Convention, which provides:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above issues and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court notes that the criminal proceedings against the applicant are now pending. It is therefore open to the applicant to raise these issues in the course of the trial and appeal proceedings.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Decides to adjourn the examination of the applicant’s complaints concerning the conditions of his pre-trial detention, the length and the review of his pre-trial detention, the length of the criminal proceedings against him and the lack of an effective remedy in this respect;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Andrey Aleksandrovich ZHELEZOVSKIY v Russia - 1752/07 [2009] ECHR 1577 (1 October 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1577.html Cite as: [2009] ECHR 1577