YEVGENIY BOGDANOV v. RUSSIA - 22405/04 - Chamber Judgment [2015] ECHR 230 (26 February 2015)

In the case of Yevgeniy Bogdanov v. Russia,

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

          Isabelle Berro, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 3 February 2015,

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

PROCEDURE

1. The case originated in an application (no. 22405/04) 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 Yevgeniy Viktorovich Bogdanov (“the applicant”), on 8 May 2004.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that his pre-trial detention had been unlawful, lengthy and unjustified, that the judicial review of the detention orders had not been prompt and that the conditions of his detention had been appalling.

4. On 5 September 2008 the application was communicated to the Government.

THE FACTS

5. The applicant was born in 1983 and lives in the town of Akhtubinsk, in the Astrakhan Region.

6. Since 2002 the applicant has been infected with hepatitis C.

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant’s arrest and detention

7. On 20 December 2002 the applicant was arrested on suspicion of knifepoint rape with an accomplice.

8. On 22 December 2002 the Astrakhan Region Akhtubinsk Town Court (“the Town Court”) remanded him in custody pending trial. The court noted that the applicant was suspected of a serious criminal offence, and held that if he remained at large he might abscond from the investigation and the court and continue his criminal activity.

9. On 19 February 2003 the Town Court extended the applicant’s detention until 20 March 2003.

10. On 20 March 2003 the Town Court held that the preventive measure should remain unchanged and should be extended until 20 April 2003. The court reiterated that the applicant had been charged with a serious criminal offence and that the circumstances of the case gave grounds to believe that if released he might continue his criminal activity. In addition the court noted that he should not be released, because this might prevent the investigator from performing certain investigative actions.

11. On 18 April 2003 the Town Court ordered the extension of the applicant’s detention until 20 May 2003. It endorsed the reasons for the extension of his detention which had been given before. It also noted that the investigating authorities needed time to perform certain investigative actions, to draft a bill of indictment, and to provide him with an opportunity to study his case file. It further observed that the applicant’s neighbours had given negative references regarding his character.

12. On 12 May 2003 the Town Court granted the investigator’s request to extend the applicant’s detention. The request was based on the arguments that the applicant was suspected of a serious crime, and that if released he might abscond. The investigator also noted that he had to perform certain investigative actions and ensure that the applicant had the opportunity to acquaint himself with the case file. The applicant argued that he was a student who had a stable place of residence, and that he could not abscond as he required in-patient medical treatment for his hepatitis C. He also provided some positive references concerning his character. The court accepted the investigator’s arguments, and extended the detention until 20 June 2003.

13. The applicant appealed against the order of 12 May 2003, complaining that insufficient reasoning had been given for that decision. He also noted that his arguments had not been addressed by the Town Court, and that the investigating authorities had unnecessarily extended the period for his familiarisation with the case file.

14. On 23 June 2003 the Astrakhan Regional Court (“the Regional Court”) dismissed the applicant’s claim. It held that his arguments could not constitute grounds for the overturning of the impugned order on appeal.

15. On 20 June 2003 the investigator applied for an extension of the applicant’s detention for two months to give the applicant an opportunity to study the case file. In response to the applicant’s arguments, the Town Court noted:

“... The circumstances cited by the investigator [concerning the need to ensure the applicant’s familiarisation with the case file] were already [sufficient] grounds for the detention orders of 18 April and 12 May 2003.

The case file contains the order of 16 June 2003, which provides that [the applicant] had until 30 June 2003 to study the case file. Accordingly, the extension of his detention for two months is an excessive measure. During the hearing the investigator and the prosecutor referred to their busy schedule, which prevented the authorities from ensuring [the applicant’s] familiarisation with his 400-page file on a daily basis. The study of the file required the applicant to be transported from a temporary detention facility to a court building. However, those arguments cannot be accepted by the court, as they are not compatible with the requirements of Article 5 § 3 of the Convention, which provides that 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 finds that the investigating authorities unnecessarily extended the investigation. Accordingly, the request in question should be partly dismissed ...”

Taking into account the above, the court extended the applicant’s detention for one month, until 20 July 2003.

16. On 11 July 2003 the Regional Court quashed the decision of 20 June 2003 on procedural grounds, finding that the Town Court only had power either to uphold the investigator’s request or to reject it. The Code of Criminal Procedure of Russia did not allow such requests to be granted in part.

17. On 18 July 2003 the Town Court extended the applicant’s detention until 20 August 2003. This decision referred to the fact that the applicant was accused of a serious offence and that there was a need to perform “certain investigative actions”.

18. On 8 August 2003 the Regional Court upheld the decision of 18 July 2003 on appeal. It rejected the applicant’s arguments concerning the lack of grounds for his detention and stated that the lower court, when ordering the extension of his detention, had duly considered the circumstances of the case, information about the applicant’s character and the necessity to perform “some investigative actions”.

19. On 2 July 2003 the applicant’s case file was remitted to the Town Court for examination on the merits.

20. By virtue of a decision of 14 July 2003 the Town Court ordered a preliminary court hearing in the applicant’s criminal case. In the descriptive part of this decision the court mentioned, among other things, that the measure of restraint which had been applied to the applicant must remain unchanged. The judge set no time-limits for the applicant’s detention. No separate court order with regard to the applicant’s detention was issued until 26 December 2003.

21. On 26 December 2003 the prosecution applied to the court for an extension of the applicant’s detention until 30 March 2004. It noted that the applicant was suspected of a serious criminal offence, and held that if released he might abscond from the investigation and the court and obstruct the establishment of the truth in the case. The applicant applied for release on bail, stating that he was suffering from hepatitis C and that there were no circumstances which would be capable of justifying the excessive length of his detention. The court refused his application. It held that the grounds for his detention remained unchanged and that he could receive medical treatment for hepatitis C in a detention facility. The applicant’s detention was extended until 30 March 2004.

22. On 18 March 2004 the Town Court extended the applicant’s detention until 30 June 2004. The court once again relied on the seriousness of the charges against the applicant. No other grounds for his detention were provided by the court.

23. On 15 June 2004 the Town Court extended the detention until 30 September 2004. This time the court referred to the seriousness of the charges and to the risk that if at liberty he could hamper the establishment of the truth in the case.

24. On 16 June 2004 the applicant appealed against the decision of 15 June 2004. His claim was received by the appeal court on 16 July 2004.

25. On 12 August 2004 the Regional Court upheld the impugned decision of 15 June 2004 on appeal. The appeal court added a new argument. It stated that the parties had significantly contributed to the length of the trial proceedings. This was due in particular to the fact that the last court hearing was adjourned owing to the absence of the defence lawyer, who was unwell. Taking into account the above and the information on the applicant’s character, the Regional Court found that his detention should not be lifted. By virtue of a decision of 14 January 2005 the higher court refused to review the applicant’s detention.

26. On 29 September 2004 the Regional Court examined a new application by the prosecuting party for an extension of the detention. Relying on the seriousness of the charges and the risk of absconding, the court extended the applicant’s detention until 30 December 2004.

27. On 12 October 2004, referring to the progress of his hepatitis C, the applicant asked the court to change his detention to house arrest. The Town Court refused, observing that he had been offered medical treatment but had refused to undergo such treatment in the detention facility; he had thereby deliberately damaged his own health.

28. On 28 December 2004 the Town Court examined the investigator’s application for an extension of the applicant’s detention and the defence’s request for a change to the measure of restraint. The court restated its earlier reasoning, and approved the extension of the detention until 30 March 2005.

29. On 12 January 2005 the Town Court ordered a psychiatric examination of the applicant. On 3 March 2005 he was transferred from the remand prison to a psychiatric hospital.

30. On 30 March 2005, after the psychiatric examination, the applicant was returned to a temporary detention facility.

31. On 30 March 2005 the Town Court once again extended his detention and dismissed his request for the release on bail. It repeated that the grounds for the applicant’s detention remained unchanged, that the applicant was accused of a serious offence, and that if released he could obstruct the criminal investigation. The detention was extended until 30 June 2005.

32. The applicant’s pre-trial detention ended on the day of his conviction, 30 May 2005.

B. Trial

33. On 8 July 2003 the prosecution case file was received by the Town Court.

34. On 30 May 2005 the Town Court convicted the applicant of knifepoint rape and sentenced him to eight years’ imprisonment.

35. On an unspecified date in 2005 the Regional Court upheld the sentence on appeal.

C. Conditions of the applicant’s detention, transportation and medical treatment

36. After the applicant’s arrest of 20 December 2002 he was placed in the temporary detention facility of the Akhtubinsk Department of the Interior of the Astrakhan Region (“the Akhtubinsk IVS”) and then remand prison IZ-30/1. He was detained in these two facilities intermittently during two years, nine months and two days, up to 25 October 2005. It appears that the principal location of his detention during this period was IZ-30/1 and that he was held in the Akhtubinsk IVS or transported there on several occasions to enable him to take part in the investigation, acquaint himself with the criminal case file, attend hearings concerning the extension of his detention (on 22 December 2002, 20 March, 18 April, 12 May, 20 June, 18 July, 26 December 2003, 18 March, 15 June, 12 August, 29 September, 12 October and 28 December 2004 and 30 March 2005) and hearings of his criminal case (as a minimum 28 July, 7 and 22 August and 30 September 2003, 14 April, 5 and 17 May, 15 June, 29 September, 30 November and 1 and 16 December 2004, and 26 April and 30 May 2005).

1. Akhtubinsk IVS

37. According to the applicant, his cell measured approximately 13.3 square metres and housed twelve to twenty persons, some of whom were suffering from tuberculosis. It was not equipped with individual sleeping places. The detainees had to sleep on a forty-centimetre podium which provided sleeping places for eight or nine of them. The interior walls were covered with rough cement. The cell was infested with rats, lice, ants, flies and other insects. It was filled with tobacco smoke, because the access of fresh air was blocked. The ventilation system did not work and the only window in the cell was covered by a metal sheet. The cell had only one 100-watt lamp, which was on day and night. During the summer the temperature in the cell was around 40 degrees Celsius. In the winter the detainees suffered from “terrible cold”. They could not leave the cell without authorisation and were not allowed to move freely around the facility. Two or three times a day they were escorted to toilet facilities in groups of three to five. The cell was not equipped with a lavatory pan or running water. Inmates were provided with a single bucket for both waste and lavatory purposes. The bucket serving as a lavatory was not separated from the rest of the cell, and thus offered no privacy. The applicant and his cellmates had two meals a day of very poor quality at 2 p.m. and 6 p.m. All of them ate from one four-litre pan using five spoons.

38. The applicant also submitted a formal warning of 15 June 2004 no. 16-43-2004, issued by the Akhtubinsk Prosecutor’s Office (“the Prosecutor’s Office”) and addressed to the Head of the Akhtubinsk IVS. It reads as follows:

“The inspection report indicates that Akhtubinsk IVS does not satisfy the requirements of domestic legislation applicable to detention facilities. It is not equipped with medical staff. Accordingly, prophylactic and anti-epidemic measures are not performed. The detainees’ clothes and bedding are not disinfected on a regular basis. The register of medical examinations, the sanitary register and the register of disinfection are not properly completed. The detainees are not examined on admission by a medical professional. The authorities do not ensure a weekly shower. The above leads to the detention of persons with various infections, sexually transmitted diseases, skin diseases, mental disorders and other diseases alongside healthy inmates. This causes the spread of diseases among the detainees ... and the staff members of the Akhtubinsk IVS.

It has been stated that the Akhtubinsk Department of the Interior, Astrakhan Region, has a medical assistant who carries out superficial inspections of the Akhtubinsk IVS, and assesses whether the domestic standards are complied with. This is not so. This person cannot be considered an employee of the Akhtubinsk IVS, because he does not carry out the entirety of the duties of such a post.

The Prosecutor’s Office has already warned the detention facility’s management about the inappropriate sanitary conditions in the Akhtubinsk IVS, but no effective action has been taken by the authorities.

In view of the above, and the provisions of section 24 of the Federal Law pertaining to the Prosecutor’s Office (“the Prosecutor’s Office Act”)” I prescribe:

1. An internal investigation to determine whether a disciplinary punishment should be applied to the responsible officials.

2. Effective measures to prevent and put right violations of the Federal Law pertaining to detention of suspects and accused persons (“the Suspects and Accused Persons (Detention) Act”.

3. Action to comply with this warning without delay: the Prosecutor’s Office to be informed within one month of the action that has been taken.”

39. The Government argued that applicant’s cell was disinfected on a regular basis and that he was provided with meals in line with the expected standards. They agreed that overall the conditions of his detention in the Akhtubinsk IVS were incompatible with the requirements of Article 3 of the Convention.

2. IZ-30/1

40. The applicant stated that the conditions of his detention in IZ-30/1 had been appalling.

41. The Government noted that the applicant was held in IZ-30/1 on many occasions between 23 January 2003 and 25 October 2005. Their submissions as regards the conditions of detention in IZ-30/1 may be summarised as follows:

Cell no.	Cell surface area (square metres)	Window sizes (centimetres)	Number of cellmates
60	22.7	92 x 90	6 -10
13	22.6	114 x 107
56	22.9	134 x 119
109	29.9	90 x 134
61	25.5	125 x 171
64	27.1	127 x 172
35	25.2	125 x 162
100	29.9	130 x 130
87	29.7	no information
55	21.8	143 x 112

42. According to the Government, the applicant was at all times provided with an individual bed and bedding, even though the personal space afforded to him was, on certain occasions, less than the statutory 4 sq. m per person. The applicant was provided with three meals per day. The quality of the food was subject to the requisite quality control.

43. Every cell in the remand prison where the applicant was detained was equipped with powered ventilation. The ventilation system was in working order. Natural ventilation was achieved by means of trickle vents in the windows. The temperature in the cells was between 18 and 25 degrees Celsius. The heating and water supply were in compliance with the applicable standards. There were no metal bars on the windows. Accordingly, access to daylight was not blocked. The artificial lighting was in compliance with the applicable specifications; there were two lamps, of 100 watts and 60 watts, which were on from 6 a.m. to 10 p.m. and from 10 p.m. to 6 a.m. respectively.

44. The toilet was separated from the living area of the cell by a two metre high brick or metal screen ensuring privacy. The cells were regularly cleaned and disinfected.

45. Detainees were permitted to take a shower at least once a week for not less than fifteen minutes.

46. The Government lastly submitted that the detention facility had had a fully equipped medical station.

3. Conditions of transportation

47. The applicant submitted that he had been frequently transported between the Akhtubinsk IVS and IZ-30/1 during his detention in these two facilities and that the conditions of his transportation had been appalling. First, he was deprived of the opportunity to sleep, because he was taken out of his cell at 11 p.m. and returned there at 3 a.m. Secondly, on the days of transportation the applicant did not receive any food (including travel rations) or water and on every occasion the prison vans were severely overcrowded. Lastly, during the transfers the detainees had to use a bottle or a plastic bag to wash themselves. There was also no possibility to use the toilet.

48. The Government provided the Court with the date of the applicant’s transfers (see paragraph 36 above), but did not submit any other information about the conditions of the applicant’s transportation.

4. Medical treatment

49. The applicant stated that before his arrest he had contracted hepatitis C. During pre-trial detention he was placed in a cell with other detainees who were infected with tuberculosis, leading to his contracting that disease. He further stated that during the detention he suffered from dermatosis and dental problems. According to the applicant, he was neither provided with adequate medical treatment nor with an appropriate diet.

50. In accordance with a medical report of an unspecified date, submitted by the Government, during the applicant’s detention he was provided with adequate medical treatment. The report reads as follows:

“Retrospective analysis of the submitted medical records confirm that [the applicant] had been suffering from hepatitis C since 2002.

During his detention [the applicant] underwent several medical examinations and received medical treatment. The last [in-patient] treatment was provided in August 2008 in the hospital of IZ-2. The results of his medical examination indicate that [the applicant] had chronic hepatitis C of low activity. In connection with this he underwent basic treatment and antivirus treatment. He was provided with hepatoprotectors and vitamins. At the present time [the applicant] continues to receive pathogenetic and aetiological treatment.

On 23 January 2003 at admission to IZ-30/1 he underwent an X-ray examination, [which indicated no pathology] of the lungs. In 2003 and 2004 [the applicant] had two such examinations. During his stay in IZ-30/1 he was often transported to the Akhtubinsk IVS to take part in court hearings or investigative actions.

In 2004 he complained of weakness, pain in the right part of his stomach and a bitter taste in his mouth. Owing to these complaints he was diagnosed with hepatitis and on 4 March 2004 he was sent to a regional hospital, were he underwent a complex medical examination. This examination indicated that he had infiltrative tuberculosis in the lower part of his right lung, pneumonia and hepatitis C.

After anti-inflammation and anti-bacterial treatment the aforementioned diagnosis was confirmed. [The applicant] was transferred to [a special hospital] where he received specific complex anti-tuberculosis treatment from 30 March to 29 April 2004. Later, the patient refused further in-patient treatment and was transported to IZ-30/1.

On 14 May 2004 an expert panel of the regional anti-tuberculosis clinic confirmed the diagnosis and concluded that his treatment had been prompt and adequate and had led to a positive health outcome.

On 14 February 2005 the expert panel stated that the [applicant] had recovered from tuberculosis. Only some insignificant traces of the disease remained in his lungs.

Until the patient’s departure for a penal colony on 25 October 2005, he received anti-relapse treatment.

[The applicant’s] disease was apparently caused by his frequent transportation to the IVS, chronic stress, hepatitis C, his anti-social behaviour and smoking.

The patient’s disease was promptly diagnosed by means of an X-ray examination, and efficiently treated in line with the relevant standards.”

51. The Government also submitted the applicant’s voluminous medical records, covering the period from 2003 to 2008. They show that during his detention the applicant underwent ten X-ray examinations, several HIV tests, and a variety of other medical examinations, including blood tests. Besides the history of his tuberculosis and hepatitis treatment, the medical records contain information about the treatment of his skin diseases. Thus, in January 2004 following his complaints regarding itching, the applicant was examined by a doctor, diagnosed with streptodermosis and provided with an ointment. In February 2004 he was diagnosed with a recent dermatitis and was also provided with ointments and other medicines. From 2005 to 2008 he did not complain about skin problems. On one occasion in June 2004 the applicant complained of headache. In connection with this, he was examined by a psychiatrist, who confirmed that he had no mental disorders and prescribed him nootropil and vitamins.

D. The applicant’s complaints concerning the conditions of his detention and the quality of medical treatment

1. Application to the Prosecutor’s Office

52. On 17 September 2004 the applicant applied to the Prosecutor’s Office for criminal proceedings to be instituted against the management of the Akhtubinsk IVS, who had put him in the same cell as infected detainees and failed to ensure the compatibility of the conditions of his detention with the minimum standards set forth by domestic law, and had failed to provide him with adequate medical assistance.

53. On 27 September 2004 the applicant’s complaint was dismissed. The Prosecutor’s Office agreed that the conditions of the applicant’s detention did not fully satisfy the requirements of domestic law and that there were some omissions on the part of the management. However, it concluded that the management’s actions did not amount to a criminal offence. The Prosecutor’s Office did not specify the established omissions of the prison authorities.

54. On 12 December 2004 the applicant challenged the aforementioned decision in court under Article 125 of the Russian Code of Criminal Procedure.

55. On 13 January 2004 the Town Court allowed the applicant’s claim and quashed the impugned decision, because the Prosecutor’s Office had not provided details of the management’s omissions.

56. No further decisions concerning the outcome of the examination of the applicant’s complaints were submitted by the parties.

57. There is no information about the examination of the applicant’s subsequent complaints of 16, 17, 19, 25, 26 and 27 July 2005, which were sent to the Prosecutor’s Office.

2. Court claims

58. On 7 and 14 September 2005 the applicant lodged two claims with the Town Court, seeking compensation for damage to his health and for non-pecuniary damage, which he alleged had been caused by the inadequate conditions of his detention in the Akhtubinsk IVS and remand prison IZ-30/1.

59. By decisions of 14 and 17 September 2005 the Town Court left the claims pending the awaited rectification of their procedural defects. The applicant was invited to clarify the list of the defendants and the factual circumstances of the alleged violations of his rights.

60. Later the applicant’s claims were returned unexamined on the merits, as the Town Court concluded that he had failed to comply with the court’s recommendations.

61. The applicant did not challenge the Town Court’s decisions on appeal.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS

A. Extension of detention

62. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgment of Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009), and Pyatkov v. Russia (no. 61767/08, § 59, 13 November 2012).

63. On 22 March 2005 the Constitutional Court emphasised the obligation on different state officials, particularly prosecutors, investigating authorities, courts and heads of detention facilities, to ensure that suspects and accused are detained only on the basis of a valid judicial decision and within the time-limit set by this decision, or else released immediately, and condemned the practice of holding defendants in detention solely on the ground that a bill of indictment had been lodged with the trial court; this interpretation of the relevant Articles of the CCrP was held to be incompatible with the Constitution and the European Court’s case-law.

B. Conditions of detention

64. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Moreover, detainees should be given, free of charge, sufficient food for the maintenance of good health in line with the standards established by the Government of the Russian Federation (section 22 of the Act).

65. Article 99 of the Russian Code on the Execution of Criminal Sentences of 8 January 1997, as amended, provides that the personal space allocated to each individual in a dormitory should be no less than two square metres. Inmates are to be provided with individual sleeping places, bed linen, toiletries and clothing which is appropriate for the season.

C. Health care of detainees

66. The relevant provisions of the domestic and international law on general health care of detainees are set out in the following judgments: Khudobin v. Russia, no. 59696/00, § 56, ECHR 2006-XII (extracts), and Vasyukov v. Russia, (no. 2974/05, §§ 36-50, 5 April 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION AND OF ARTICLE 13 OF THE CONVENTION

67. The applicant complained that the conditions of his detention in the Akhtubinsk IVS and IZ-30/1 between 20 December 2002 and 22 August 2005 were incompatible with Article 3 of the Convention. Article 3 of the Convention reads as follows:

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

68. The applicant also claimed that he had not had at his disposal an effective remedy for the violation of the guarantee against ill-treatment, as required under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

A. Admissibility

69. The Government submitted that the applicant had not exhausted the domestic remedies, because he had not properly raised his grievances before the domestic courts.

70. The applicant argued that he had raised complaints concerning the conditions of his detention with the Prosecutor’s Office and before the Town Court, both of which refused to examine his claims on the merits.

71. The Court has previously dismissed a similar argument of the Government (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 70 and 100-19, 10 January 2012). The Court finds no reason to reach a different conclusion in the present case.

72. The Court notes that these complaints 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.

B. Merits

1. Alleged violation of Article 13 of the Convention

(a) The parties’ submissions

73. The Government noted that the applicant had failed to bring his grievances to the attention of the Russian courts, and submitted that his complaint should be rejected for failure to comply with the requirements of Article 35 § 1 of the Convention. In their opinion, it was open to the applicant to obtain adequate relief by addressing his grievances to a court. They cited two examples from domestic practice where claimants were awarded compensation for non-pecuniary damage for inadequate conditions of detention. Lastly, referring to the Court’s case-law (see Whiteside v. the United Kingdom, decision of 7 March 1994, application no. 20357/92, Decisions and Reports 76, p. 80), they pointed out that a mere doubt on the applicant’s part as to the prospect of success was not sufficient to exempt him from submitting his complaint to any of the above-mentioned competent national authorities.

74. The applicant maintained his complaints. He argued that his grievances concerned structural problems within the Russian correctional system, and that therefore he had no effective remedies available to him.

(b) The Court’s assessment

75. In the case of Ananyev and Others v. Russia (cited above, §§ 93-119) the Court carried out a thorough analysis of domestic remedies in the Russian legal system in respect of a complaint relating to the material conditions of detention in a remand prison. The Court concluded in that case that it was not shown that the Russian legal system offered an effective remedy that could be used to prevent a violation or prevent it from continuing once it had occurred, or to provide the applicant with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention. Accordingly, the Court found that the applicants in that case did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention.

76. Having examined the Government’s arguments, the Court finds no reason to depart from this conclusion in the present case. Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court considers that there has been a violation of Article 13 of the Convention.

2. Alleged violation of Article 3 of the Convention

(a) The parties’ submissions

77. As regards the conditions of the detention in the Akhtubinsk IVS, the Government agreed that they were not in full compliance with the requirements of Article 3 of the Convention, although the cells where he was kept were disinfected on a regular basis and he was provided with meals in accordance with domestic standards.

78. As regards IZ-30/1, the Government stated that the conditions of the applicant’s detention in this remand prison were in line with the provisions of Article 3 of the Convention.

79. The applicant’s submissions are presented in paragraphs 37 and 40 above. In addition, he stated that the cells in IZ-30/1 were overcrowded and that the detainees were not provided with individual sleeping places.

(b) The Court’s assessment

80. The Court will examine the merits of this part of the applicant’s complaint under Article 3 in the light of the applicable general principles reiterated in, among other cases, the case of Ananyev and Others (cited above, §§ 139-41).

81. The Court observes at the outset that during the overall period of two years, nine months and two days between 23 January 2003 and 25 October 2005 the applicant was held in two detention facilities. Except for twenty eight days when he was transported to the Akhtubinsk IVS to attend court hearings or take part in investigative actions, the applicant was held in IZ-30/1. In IZ-30/1 he was held in ten different cells, whose size varied from 21.8 to 29.9 square metres for 6 to 10 cellmates.

82. The Court further notes that it previously examined the conditions of detention in IZ-30/1 in 2005 and established that there was severe overcrowding in this facility (see Ananyev and Others, cited above, §§ 134-38). In its findings the Court referred to the Ombudsman’s report of 2005, which deplored the poor sanitary and hygienic conditions of detention in prison IZ-30/1, and indicated that “the prison was filled at all times well beyond its design capacity. The actual number of detainees at the end of 2005 and 2006 was more than double the capacity (see Ananyev and Others, cited above, §§ 20-21 and 134-38).

83. Having regard to the Government’s submissions in relation to the overcrowding problem and to the fact that it has already found a violation of Article 3 of the Convention on account of an acute lack of personal space in the cells of IZ-30/1 in respect of the time during which the applicant was held there (see Ananyev and Others, cited above, § 166), the Court considers that the applicant’s cells were overcrowded.

84. As regards the Akhtubinsk IVS, having regard to the information submitted by the parties, the Court finds it established that the applicant was detained in cramped conditions, given that the detainees had from 1.1 to 0.67 sq. m of cell space each. Moreover, the Government acknowledged the incompatibility of the conditions of detention in this facility.

85. In view of the above, the Court finds that the applicant’s detention in these two facilities between 23 January 2003 and 25 October 2005 amounted to inhuman and degrading treatment.

86. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF INFECTION WITH TUBERCULOSIS AND ADEQUACY OF MEDICAL CARE

87. The applicant complained under Article 3 of the Convention that the prison authorities had caused him to be infected with tuberculosis by placing him in a cell with detainees who had contracted this disease. He further claimed that the authorities had not ensured adequate treatment of his hepatitis and tuberculosis and had not provided him with an adequate diet.

A. The parties’ submissions

88. The Government submitted that the applicant was provided with adequate and effective medical treatment. They referred to a medical report, cited above (see paragraph 50 above).

89. The applicant maintained his complaints.

B. The Court’s assessment

1. The infection with tuberculosis

90. The Court reiterates its constant approach that even if an applicant had contracted tuberculosis while in detention, this in itself would not imply a violation of Article 3, provided that he received treatment for it (see Alver v. Estonia, no. 64812/01, § 54, 8 November 2005, and Pitalev v. Russia, no. 34393/03, § 53, 30 July 2009, with further references).

91. Turning to the present case, the Court notes that during his detention the applicant underwent X-ray examinations on a regular basis. In March 2004 he was diagnosed with tuberculosis and provided with anti-inflammatory, antibacterial, and complex anti-tuberculosis treatments, as well as anti-relapse treatment. On 14 February 2005 the expert panel established that he had recovered, and confirmed that his treatment had been prompt, adequate and effective (see paragraph 50 above). Given the lack of any evidence to the contrary in the case file, the Court accepts the aforementioned findings as valid.

92. The Court concludes that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The alleged inadequacy of medical treatment in prison

93. The Court reiterates that an unsubstantiated allegation that medical care has been non-existent, delayed or otherwise unsatisfactory is normally insufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question, medical treatment that was sought, provided, or refused, and some evidence, such as, expert reports, which are capable of disclosing serious failings in the applicant’s medical care (see Valeriy Samoylov v. Russia, no. 57541/09, § 80, 24 January 2012).

94. The Court observes that the applicant, who was represented at the national level by a lawyer, did not provide any evidence which would substantiate his allegations of the deficiency of medical care. Moreover, he did not provide plausible explanations for this omission.

95. At the same time, the Government submitted various documents relating to the applicant’s medical treatment in detention and the expert report concerning the adequacy of the provided treatment (see paragraph 50 above).

96. Since these materials disclose no shortcomings on the part of the national authorities in regard to the applicant’s treatment, the Court considers that his allegations in this respect are unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S CONDITIONS OF TRANSPORTATION

97. The applicant was also dissatisfied with the conditions of his transportation to and from the Akhtubinsk IVS during his detention in remand prison IZ-30/1. 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

98. The Government denied that there had been any issues with the conditions of the transportation, but did not submit any specific information in connection with this complaint.

99. The applicant disagreed and maintained his complaints (see paragraph 47 above). He submitted, in particular, that many of the impugned transfers took place during the court proceedings in his criminal case. In his view, the conditions of transportation affected his physical and mental state and his ability to concentrate on the proceedings.

B. The Court’s examination

1. Admissibility

100. 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

101. The Court notes that the applicant submitted a detailed and coherent description of the conditions of his transportation in part relating to the duration and general conditions of travel. The respondent Government informed the Court about the dates of the applicant’s journeys to the Akhtubinsk IVS (see paragraph 36 above), 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.

102. 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.

103. Given the Government’s silence on this point, the Court finds that they 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 the remand prison on the basis of the applicant’s submissions (see Igor Ivanov v. Russia, no. 34000/02, §§ 34-35, 7 June 2007).

104. The Court notes that according to the applicant he was transported in severely overcrowded prison vans (see paragraph 47 above). He was transported in cramped conditions on no fewer than twenty eight occasions over a period of two years, nine months and two days (see paragraph 36 above). On those days he was not provided with adequate nutrition and was confined in unacceptable conditions at the assembly section in the remand centre (see paragraphs 47 and 48 above). The above treatment occurred at least in part during his trial between July 2003 and May 2005 (see paragraphs 33 and 34 above), 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). It further notes that the medical report submitted by the Government mentioned his frequent transfers as one among many factors which may have contributed to the applicant’s infection with tuberculosis (see paragraph 50 above).

105. 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.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION

106. The applicant claimed under Article 5 § 1 (c) that his pre-trial detention lacked grounds and was unlawful. The relevant parts of Article 5 read 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 ...”

A. The parties’ submissions

107. The Government submitted that the applicant did not challenge on appeal the court’s decisions of 21 December 2002, 19 February, 20 March, 18 April, 14 July, and 26 December 2003, 18 March, 29 September, 28 December 2004, and 30 March 2005 concerning his pre-trial detention. Accordingly, his complaints should be dismissed for non-exhaustion of domestic remedies. They further noted that his detention was lawful and therefore compatible with the requirements of the Article 5 § 1 (c).

108. Addressing the Court’s question concerning the lawfulness of the detention between 20 August and 26 December 2003 and between 30 March and 15 June 2004, the Government noted that on 2 July 2003 the investigating authorities sent the applicant’s case to the Town Court, which received it on 8 July 2003. On 14 July 2003 the Town Court ordered a preliminary hearing, which was to be held on 28 July 2003. Subsequently, the Town Court ordered that the examination of the applicant’s case on the merits should commence on 7 August 2003. During the trial the detention was extended by virtue of Town Court orders of 26 December 2003 and 18 March, 15 June, 29 September and 28 December 2004.

109. The applicant maintained his complaints, noting that he appealed against the decisions of 12 May, 20 June, 18 July 2003 and 12 August 2004.

B. The Court’s assessment

1. Admissibility

110. Taking into account the circumstances of the case and the Government’s submissions, the Court notes that from 22 December 2002 to 20 August 2003 and from 26 December 2003 to 30 May 2004 the applicant was detained by court order. During the remaining period, namely from 20 August to 26 December 2003, no detention orders were made by the trial court.

111. The Court will first examine the admissibility of the periods of his detention under the court orders and then the admissibility of his detention in the remaining period.

112. In the Court’s opinion, when they ordered the applicant’s detention and its extension in the periods from 22 December 2002 to 20 August 2003 and from 26 December 2003 to 30 May 2004 the domestic courts were acting within their powers. There is nothing to suggest that the detention orders concerning the aforementioned periods were invalid or unlawful under domestic law. Accordingly, the Court finds that it is not necessary to examine the Government’s non-exhaustion plea in respect of these periods (for the same approach see Yudayev v. Russia, no. 40258/03, § 53, 15 January 2009). The applicant’s complaints in this respect are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

113. As regards the period from 20 August to 26 December 2003 the Court notes that the trial court issued no orders concerning the applicant’s detention in this period. Although in the narrative part of the decision of 14 July 2003 on the setting of a preliminary hearing the court mentioned that the applicant’s measure of restraint must remain unchanged, it gave no order in this respect (see paragraph 20 above). This was in line with the domestic legal practice of the relevant period. The Court has previously noted that the domestic authorities interpreted Article 255 § 2 of the Code of Criminal Procedure as permitting the detention of an accused without a court order for up to six months from the date of receipt of the case file by a court. A judicial order was required only if detention “during the trial” exceeded six months (see Yudayev, cited above, § 56). The Constitutional Court subsequently condemned that practice as unconstitutional, finding that it was contrary to Article 5 § 1 of the Convention (see paragraph 63 above). Since the Town Court delivered no orders concerning the extension of the applicant’s detention in the period under examination, and the legal practice did not require the issuance of such orders, the Court concludes that the applicant had no remedy to make use of.

114. The Court further observes that the applicant lodged his complaints under Article 5 § 1 (c) on 8 May 2004, which is less than six months from the end of the impugned period of the applicant’s detention. Consequently, the requirements of the six-month rule were complied with.

115. The Court finds that the complaint concerning the lawfulness of the detention from 20 August to 26 December 2003 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

116. The Court has already examined and found a violation of Article 5 § 1 of the Convention in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court. It has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation - with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation - is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Fursenko v. Russia, no. 26386/02, §§ 77-79, 24 April 2008; Lebedev v. Russia, no. 4493/04, §§ 52-59, 25 October 2007; Melnikova v. Russia, no. 24552/02, §§ 53-56, 21 June 2007; Belevitskiy v. Russia, no. 72967/01, §§ 86-93, 1 March 2007; Korchuganova v. Russia, no. 75039/01, §§ 55-59, 8 June 2006; Nakhmanovich v. Russia, no. 55669/00, §§ 67-68, 2 March 2006; and Khudoyorov v. Russia, no. 6847/02, §§ 144-51, ECHR 2005-X). The Court does not see any reason to reach a different conclusion in the present case. Consequently, the Court finds that the applicant’s detention between 20 August and 26 December 2003 was contrary to Article 5 § 1 (c) of the Convention.

117. It therefore concludes that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s unlawful detention.

V. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

118. The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention that the length of his detention pending trial had been excessive and that the reasons to justify it were not relevant and sufficient.

119. The Court will examine this complaint under Article 5 § 3 of the Convention, the relevant part of which reads as follows:

“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.”

A. The parties’ submissions

120. The Government submitted that the applicant’s complaints under Article 5 of the Convention should be declared inadmissible, because he failed to exhaust available domestic remedies, namely to appeal against the decisions concerning the extension of his detention of 19 February, 20 March, 18 April, 14 July and 26 December 2003, 18 March, 29 September and 28 December 2004, and 30 March 2005. They further submitted that the decisions to remand the applicant in custody were lawful and well reasoned. The length of his detention was justified by the complexity of his criminal case, the necessity to perform an expert psychiatric examination, the non-appearance of his lawyer, the seriousness of the charges against him and his state of health.

121. The applicant submitted that the domestic courts had not advanced “relevant and sufficient” reasons to hold him in custody for such a lengthy period of time. Their decisions were formalistic, unsubstantiated and lacked reasoning. He also noted that the appeal supervision was not “an effective remedy”, as his appeals against the decisions of 12 May, 20 June, 18 July 2003 and 15 June 2004 were dismissed.

B. The Court’s assessment

1. Admissibility

122. As regards the Government’s argument, the Court reiterates that the purpose of the rule requiring domestic remedies to be exhausted is to afford Contracting States the opportunity of preventing or putting right the alleged violations before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). In the context of an alleged violation of Article 5 § 3 of the Convention, this rule requires that the domestic authorities be given an opportunity to consider whether an applicant’s right to trial within a reasonable time has been respected and whether there exist relevant and sufficient grounds continuing to justify the deprivation of liberty (see, for instance, Shcheglyuk v. Russia, no. 7649/02, § 35, 14 December 2006, or Pshevecherskiy v. Russia, no. 28957/02, § 50, 24 May 2007).

123. In the present case, during his pre-trial detention period the applicant challenged at least four court orders extending his detention (see paragraphs 13, 16, 17 and 24 above). The Court thus considers that, although the applicant did not lodge appeals against any other extension orders, he gave the Regional Court the opportunity to consider whether his detention was compatible with his Convention right to trial within a reasonable time or release pending trial (for a similar approach see the case of Chumakov v. Russia, no. 41794/04, § 149, 24 April 2012, where the applicant challenged only two court orders).

124. In the light of the foregoing, the Court considers that the applicant cannot be said to have failed to exhaust domestic remedies in respect of his complaint under Article 5 § 3 of the Convention. It therefore rejects the Government’s objection.

125. The Court further 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.

2. Merits

(a) General principles

126. The Court reiterates that when determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see, among other authorities, Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7; Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV; and Ječius v. Lithuania, no. 34578/97, § 44, ECHR 2000-IX).

127. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of the public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).

128. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Contrada v. Italy judgment of 24 August 1998, Reports 1998-V, p. 2185, § 54, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, pp. 2978-79, § 102). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts) When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000).

129. The responsibility falls in the first place on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable length. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the arguments for or against the existence of a public interest which justifies a departure from the rule in Article 5, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X).

(b) Application of these principles to the present case

(i) Period to be taken into consideration

130. The Court notes that the applicant was arrested on 20 December 2002 and convicted on 30 May 2005. Between 3 and 30 March 2005 he was in a psychiatric hospital under an obligation not to leave the place without permission. Under Article 188 of the old CCrP the time spent by a suspect or an accused in a psychiatric institution counted towards the overall term of pre-trial detention. The Court sees no reason to deviate from domestic rules in this respect (for the same approach, see the case of Melnikova v. Russia, cited above, § 78). Accordingly, the period to be taken into consideration lasted two years, five months and ten days.

131. The length of the applicant’s detention is a matter of concern for the Court. The presumption being in favour of release, the Russian authorities were required to put forward very weighty reasons for keeping the applicant in detention for such a long time.

132. The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed the offence of knifepoint rape. However, with the passage of time that ground inevitably became less and less relevant. Accordingly, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see Labita, cited above, § 153). It will therefore examine the reasons given by the Russian courts throughout the period of the applicant’s detention.

(ii) Justification of the applicant’s detention

(α) Seriousness and nature of charges

133. When extending the applicant’s pre-trial detention, the domestic courts repeatedly referred to the seriousness of the charges against him and noted that he was charged with a serious criminal offence (see paragraphs 10, 12, 17, 21 and 31 above).

134. The Court considers that although it is relevant for the purposes of assessing whether the applicant was at risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Although the Court may accept that the seriousness of charges might form the basis for detention at the initial stages of the proceedings (see Celejewski v. Poland, no. 17584/04, §§ 37-38, 4 May 2006, and Kučera v. Slovakia, no. 48666/99, § 95, ECHR 2007 (extracts)), it cannot agree that it may be accepted at an advanced stage of the proceedings as the main reason for a person’s detention.

135. Accordingly, the above circumstances alone could not constitute a sufficient basis for holding the applicant in detention for such a long period of time.

(β) Danger of absconding

136. As regards the risk of absconding, it should be assessed with reference to various factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8).

137. In the present case, aside from noting the seriousness of the charges, the courts did not refer to any other justification for the risk of absconding. It appears from the courts’ decisions that no weight was given, and indeed no assessment made, in respect of the applicant’s arguments that he had a stable place of residence, that he was a student and that because of his illness he required in-patient treatment (see paragraphs 12, 13, 27 and 28 above). In the evidence before the Court there is no indication of anything which could have provided grounds to believe that a real risk of absconding existed.

138. The Court therefore considers that the domestic courts’ reliance on the above reasons was not justified (for similar reasoning, see Mikhail Grishin v. Russia, no. 14807/08, § 144, 24 July 2012).

(γ) Need to carry out further investigations and to ensure the applicant’s familiarisation with his case file

139. The Court observes that the investigating authorities and the courts stated that the applicant’s detention needed to be extended because further investigative actions were required and to ensure the applicant’s familiarisation with the case file (see paragraphs 11, 12, 13, 15 and 17 above).

140. The Court cannot accept that the reasons referred to by the domestic courts were valid for the extension of the applicant’s detention, since neither the investigating authorities nor the courts were specific as to the investigative actions which needed to be carried out. Instead they used an abstract phrase - “certain investigative actions”. Moreover, neither the Town Court nor the Regional Court made a proper assessment of the investigating authorities’ diligence in carrying out the investigation.

141. As regards the necessity to provide the applicant with an opportunity to study his case file, by virtue of the decision of 20 June 2003 the Town Court accepted his submissions that the study process was unnecessarily prolonged by the investigator (see paragraph 15 above). This conclusion was not altered at a higher level of jurisdiction (see paragraph 16 above). Accordingly, this could not be held against the applicant to justify his pre-trial detention.

(δ) Other reasons for the justification of the applicant’s detention

142. The Court observes that the decision of 12 August 2004 given by the Regional Court was based, inter alia, on the argument that the last court hearing was adjourned owing to the non-appearance of the applicant’s lawyer, who was unwell. The Town Court did not specify the period of the adjournment (see paragraph 25 above).

143. Taking into account the above and the fact that no other allegations that the examination of the case had been unnecessarily prolonged were made against the defence, the Court considers that the episode in question did not significantly contribute to the overall length of the detention and therefore could not be held against the applicant.

144. The Court further observes that the domestic courts mentioned some negative references concerning his character, submitted by the prosecuting party (see paragraphs 11, 17 and 25 above). It also seems that the case file also contained some conflicting references provided by the defence (see paragraph 12 above).

145. The Court is not persuaded by the reliance on negative references about the applicant’s character, because they were not properly analysed by the courts and because the courts failed to explain why they dismissed the positive references provided by the defence.

146. Lastly, the Court notes the arguments of the Government that the applicant’s detention was justified by the necessity to perform an expert psychiatric examination and by his illness. These arguments were not put forward by the domestic courts.

147. As regards the necessity to perform an expert psychiatric examination of the applicant, the Court notes that the expert examination in question lasted only twenty-seven days and that this time interval, either itself or considered together with other factors, such as the non-appearance of the applicant’s lawyer, could not explain or justify the applicant’s detention for two years, five months and ten days.

148. As regards the applicant’s health, the Court sees no rationale in the Government’s submissions. The fact that he had hepatitis C and tuberculosis was in favour of his release, rather than his detention.

(iii) The Court’s conclusion

149. To sum up, the Court concludes that whereas there may have been relevant and sufficient grounds for the applicant’s detention at the early stage of the investigation, the reasons put forward by the domestic courts were not sufficient to justify his detention for almost two and a half years.

150. Accordingly, the Court finds that there has been a violation of Article 5 § 3 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

151. The applicant also complained that his requests for a court review of the detention orders of 12 May, 20 June and 18 July 2003, as well as the order of 15 June 2004 were not examined speedily, as required by Article 5 § 4 of the Convention. This Convention provision reads as follows:

“4. 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.”

A. The parties’ submissions

152. The Government disagreed with the applicant and in respect of the detention order of 15 June 2004 stated that the Regional Court examined the applicant’s appeal against that decision within a reasonable time.

153. The applicant maintained his complaint, and submitted that delays in the appeal proceedings had been wholly the fault of the domestic authorities.

B. The Court’s assessment

1. Admissibility

154. As regards the applicant’s complaints about the delayed appeal hearings on his detention orders of 12 May, 20 June and 18 July 2003, the Court notes that these complaints were raised in substance before it on 8 May 2004. Bearing in mind the six-month requirement laid down in Article 35 § 1 of the Convention, the Court considers that it is not competent to examine these grievances (for the same approach see Nizomkhon Dzhurayev v. Russia, no. 31890/11, § 159, 3 October 2013; Khudoyorov v. Russia, (dec.), no. 6847/02, 22 February 2005; and Artemov v. Russia, no. 14945/03, § 90, 3 April 2014). Accordingly, the aforementioned complaints should be dismissed as belated.

155. The Court further notes that the complaint concerning the delayed examination of the applicant’s appeal against the order 15 June 2004 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

(a) General principles

156. The Court reiterates that Article 5 § 4, in guaranteeing to individuals arrested or detained the right to bring proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and to have it terminated if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273-B, and Toth v. Austria, 12 December 1991, § 84, Series A no. 224). The requirement that a decision be given “speedily” is undeniably one such guarantee and Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a particular need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because a defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001).

157. Although the number of days taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007). What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant, and any factors causing a delay for which the State cannot be held responsible (see G.B. v. Switzerland, no. 27426/95, §§ 34-39, 30 November 2000).

(b) Application of the general principles to the present case

158. The Court notes that the applicant’s appeal against the detention order of 15 June 2004 dated 16 June 2004 was received by the Regional Court on 16 July 2004 and examined on 12 August 2004.

159. It further notes that the Government did not provide any explanation as to why the forwarding of the applicant’s appeal to the Regional Court took a whole month. They did not claim that the applicant himself caused any delays in its examination, or that the issues at stake were complex and therefore required extra time for their examination. In these circumstances the Court finds it appropriate to take into consideration the period from 16 June 2004, the date the appeal was lodged with the domestic authorities, to 12 August 2004, the date it was examined on the merits. Accordingly, it took one month and twenty-six days to deal with the applicant’s appeal.

160. The Court reiterates that it has found a violation of Article 5 § 4 in Russian cases where appeal proceedings lasted twenty days (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009), twenty-six days (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006) and twenty-seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), stressing that their entire duration was attributable to the authorities.

161. The circumstances of the present case indicate that the period of the entire duration of the delay should be attributed to the authorities’ failure to deal in a timely fashion with a relatively simple issue. Having regard to the aforementioned case-law, the Court considers that the requirements of “speediness” were not complied with. In such circumstances, the applicant’s right of appeal was rendered devoid of any useful purpose.

162. There has therefore been a violation of Article 5 § 4 of the Convention.

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

163. Referring to Articles 1, 2, 6 of the Convention and Article 1 of Protocol No. 12 he also raised a number of complaints in connection with the criminal proceedings against him and his imprisonment.

164. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

165. 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

166. The applicant claimed 3,000 euros (EUR) in respect of pecuniary damage allegedly caused by the inadequate conditions of detention and his medical treatment, and EUR 1,000,000 in respect of non-pecuniary damage.

167. The Government submitted that the claim for compensation of pecuniary damage was unsubstantiated, and that the finding of a violation would constitute sufficient satisfaction.

168. Regard being had to the documents in its possession, the Court finds the applicant’s complaint with respect to pecuniary damage unsubstantiated. On the other hand, the Court considers that the applicant must have sustained stress and frustration as a result of the violations found, which cannot be compensated for solely by the finding of a violation. Making an assessment on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

169. The applicant also claimed EUR 2,039 for costs and expenses incurred before the domestic courts and before the Court.

170. The Government contested that the applicant’s claims were unsubstantiated.

171. 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 rejects the claim for costs and expenses in the domestic proceedings, and considers it reasonable to award the sum of EUR 500 covering costs under all heads.

C. Default interest

172. 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. Declares admissible the complaints concerning the conditions of the applicant’s detention in the Akhtubinsk IVS and IZ-30/1 and the lack of effective remedies in this respect, the lawfulness of his detention in the period between 20 August and 26 December 2003, the length of his detention and the speediness of the judicial review of the detention order of 15 June 2004, and declares the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy;

3. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Akhtubinsk IVS and IZ-30/1;

4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transportation between the Akhtubinsk IVS and IZ-30/1;

5. Holds that there has been a violation of Article 5 § 1 (c) of the Convention concerning the applicant’s detention between 20 August and 26 December 2003;

6. Holds that there has been a violation of Article 5 § 3 of the Convention;

7. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the delayed examination of the applicant’s appeal against the detention order of 15 June 2004;

8. Holds

(a) that the respondent State is to pay the applicant, within three months from 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:

(ii) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 500 (five hundred 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> YEVGENIY BOGDANOV v. RUSSIA - 22405/04 - Chamber Judgment [2015] ECHR 230 (26 February 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/230.html Cite as: [2015] ECHR 230