DUDCHENKO v. RUSSIA - 37717/05 (Judgment : Remainder inadmissible - Manifestly ill-founded) [2017] ECHR 965 (07 November 2017)

In the case of Dudchenko v. Russia,

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

          Helena Jäderblom, President,
          Branko Lubarda,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 October 2017,

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

PROCEDURE

1. The case originated in an application (no. 37717/05) 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 Vladimir Nikolayevich Dudchenko (“the applicant”), on 1 September 2005.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. Referring to Articles 3, 5, 6 and 8 of the Convention, the applicant alleged, in particular, that the conditions of his detention and transport had been inadequate, that the length of this detention had been excessive and unjustified, that the length of the criminal proceedings had also been excessive, that the domestic authorities had violated his right to legal assistance of his own choosing, and that he had been subjected to covert surveillance in breach of the right to respect for his private life and correspondence.

4. On 26 February 2010 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1975 and lives in Murmansk.

A. Criminal proceedings against the applicant

6. On 23 December 2003 the Murmansk regional prosecutor’s office initiated criminal proceedings against the applicant, who was suspected of leadership of a criminal armed gang. According to the authorities, the applicant, as the leader of the gang, had planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion, in Murmansk and Moscow.

7. On 23 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone, number ...-15. The surveillance authorisation read in its entirety as follows:

“[The police] are investigating [a case] against a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. [M.] and [Z.] are members of that gang. According to intelligence information, these people are planning to commit aggravated extortion from Murmansk businessmen. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-15, registered as belonging to [M.].

In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure]

decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-15.”

8. On 24 and 25 December 2003 the police intercepted the applicant’s conversations with an accomplice, M.

9. On 25 December 2003 two of the applicant’s accomplices, M. and S., were arrested. The applicant went into hiding.

10. On the same day, 25 December 2003, at the applicant’s request his brother retained G. as the applicant’s legal representative. The legal services agreement stated that G. was to consult and defend the applicant while his name was on the police’s wanted persons list in connection with charges that were not yet known to him. If the applicant were to be arrested by the police, an additional agreement would be signed between G. and the applicant. There is no evidence that the police or the investigator were informed about that agreement.

11. On 26 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone number ...-49. The surveillance authorisation read in its entirety as follows:

“[The police] have intelligence information about a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-49.

decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-49.”

12. On 26 and 27 December 2003 the police intercepted conversations between the applicant and G.

13. On 27 December 2003 the applicant was arrested.

14. On 28 December 2003 G. informed the investigator that he was the applicant’s defence counsel by virtue of instruction no. 1062 of the Murmansk Regional Bar Association (“the Bar Association”). He was formally admitted (допущен) as counsel for the applicant.

15. On 5 January 2004 the applicant was charged with aggravated robbery, assault, kidnapping and extortion, committed by an organised criminal group. S. and M. were also charged with the same criminal offences.

16. At the beginning of August 2004 the investigator informed G. that his presence was required during investigative procedures involving the applicant. On 23 August 2004 the investigator was informed by the Bar Association that G. was on annual leave until 4 October 2004.

17. On 24 August 2004 the investigator appointed legal aid counsel for the applicant, noting that he had refused to choose replacement counsel and had insisted on being represented by G.

18. On 30 August 2004 the investigator decided to remove G. as counsel for the applicant, finding that it was necessary to question him about his telephone conversations with the applicant on 26 and 27 December 2003. He noted that at the time, G. had not yet been the applicant’s counsel. However, well aware that the applicant had committed serious criminal offences, G. had advised him what to do. In particular, he had told the applicant that money was needed, which could possibly mean that G. had intended to bribe a police official. He had also informed him about the course of the criminal proceedings, which had become known to him as at the time he had been representing the applicant’s accomplices, S. and M. When the police had tried to force the applicant’s door, the applicant had summoned G., who had said that he could not come and offered to send another lawyer. He had then advised the applicant to try to avoid arrest and, if that was not possible, to destroy his telephone and the SIM card, and to remain silent when questioned. In the investigator’s opinion, by giving such advice, G. had been trying to hide his connections with the applicant and his knowledge of the criminal offences committed by him. Given that at the material time G. had not been formally admitted as the applicant’s counsel, he should be considered as having advised him in his capacity as a simple citizen. He should therefore be called as a witness in the criminal proceedings against the applicant.

19. On 11 October 2004 the criminal case against the applicant and his accomplices was transferred to the Murmansk Regional Court for trial. The criminal case file comprised twelve volumes; five criminal cases were joined into one criminal case against the applicant and his accomplices.

20. A preliminary hearing was held on 21 and 22 October 2004.

21. The trial started on 3 November 2004. The applicant asked the court for permission for his brother, a civil lawyer working at a company which sold car spare parts, to act as his defence counsel. The court rejected his request, stating that the applicant’s brother was not qualified to participate as defence counsel in criminal proceedings, that he did not have the relevant practical experience, and that the applicant was already represented by legal aid counsel.

22. On 4 November 2004 the applicant requested that legal aid counsel assigned to his case be removed for failure to provide adequate legal assistance. The court rejected his request. The applicant then requested that AM. be admitted as his defence counsel instead of the legal aid lawyer. The judge granted that request and AM. represented the applicant throughout the remainder of the criminal proceedings. The trial was adjourned until 15 November 2004 to let AM. study the case file.

23. On 15 November 2004 the hearing was again postponed, until 22 November 2004, owing to the failure of one of the co-accused to appear due to illness.

24. Further hearings were held between 22 November and 9 December 2004.

25. On 22 November 2004 the applicant challenged the admissibility as evidence of transcripts of his telephone conversations with G. on 26 and 27 December 2003. He argued that G. had been his counsel as from 25 December 2003, as confirmed by the legal services agreement of that date and by relevant payment invoices. The conversations in question were therefore protected by legal professional privilege and their transcripts could not be used in evidence in criminal proceedings.

26. On 30 November 2004 the Murmansk Regional Court found that the legal services agreement of 25 December 2003 stated that G. was to provide the applicant with legal assistance in the framework of criminal proceedings, without clearly identifying the criminal proceedings to which it related. The investigator had not been informed about that agreement. G. had not been formally admitted as the applicant’s counsel in the present criminal proceedings until 28 December 2003 when he had shown the investigator the relevant instruction by the Bar Association. The Regional Court found it relevant that during the conversations intercepted by the police, G. had advised the applicant to remain in hiding and to destroy the evidence. Moreover, having been present, as their counsel, at S.’s and M.’s questioning after their arrest, G. had informed the applicant about their statements to the investigator. When summoned by the applicant to assist him at the time of his arrest, he had refused to come and had offered to send another lawyer. That gave reasons to doubt that G. had been representing the applicant at the time in the present criminal proceedings. The investigator had subsequently removed G. as counsel for the applicant. G. had not, however, been called to testify against the applicant in breach of legal professional privilege. Given that the applicant’s conversations with G. intercepted by the police contained information about the applicant’s criminal activities, they were not subject to legal professional privilege and their transcripts were admissible as evidence.

27. On 9 December 2004 the court ordered a graphological expert report and for that reason adjourned the trial until 5 April 2005.

28. On 4 April 2005 the applicant lodged an action before the Oktyabrskiy District Court of Murmansk, challenging the investigator’s decision of 30 August 2004 to remove G. as his counsel. On 6 June 2005 the Oktyabrskiy District Court dismissed that complaint as inadmissible, finding that it could not be examined once the investigation had been completed. The applicant could raise the complaint before the trial court.

29. Meanwhile, further hearings were held on 5, 25 and 27 April and 5 and 12 May 2005.

30. On 19 May 2005 the court ordered a complex psychological expert examination of one of the co-accused and adjourned the trial pending the expert examination report. A further complex psychological examination was ordered on 4 July 2005 and the trial was again adjourned until 7 October 2005.

31. On 7 October 2005 the trial was adjourned because the court ordered that two prosecution witnesses who had testified against S. and who were detained in Moscow be transported to Murmansk for a cross-examination.

32. The trial remained adjourned between 7 October 2005 and 6 March 2006 while awaiting the transfer of the prosecution witnesses, who at the time were on trial in a criminal case in Moscow. They were transferred to Murmansk on 3 March 2006, after their conviction of 7 October 2005 had been upheld on appeal on 26 December 2005.

33. On 29 December 2005 the applicant challenged the admissibility as evidence of the transcripts of his telephone conversations with M. on 24 and 25 December 2003 and with G. on 26 and 27 December 2003. He claimed, in particular, that the transcripts had been obtained unlawfully.

34. The trial was resumed on 6 March 2006. Hearings were held on 16 March, 6, 7, 13 and 20 April 2006.

35. During the trial the court examined numerous pieces of evidence, including three expert reports and the statements of six victims and twenty-four witnesses from Murmansk and Moscow.

36. On 12 May 2006 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment. It relied on the transcripts of the applicant’s telephone conversations with G. and M., among other evidence, observing that the interception of the applicant’s telephone communications had been authorised by a court. Having analysed the transcripts of the applicant’s telephone conversations with G., it held as follows:

“The lawyer had not been formally admitted to provide legal assistance to [the applicant] at the time [when the interception had taken place]. His actions were considered by the investigator to be unlawful and served as a basis for the decision to remove [G.] as counsel for [the applicant] and for considering the question of opening criminal proceedings [against G.]. The court does not have any reason to believe that the information obtained as a result of [intercepting the applicant’s] telephone communications with [G.] cannot be used as evidence, given that the information in question has not become known to [G.] as a result of providing legal assistance to [the applicant].”

37. The applicant appealed against the conviction, claiming that the Regional Court had erred in its assessment of the evidence, that the transcripts of his telephone conversations with his co-defendant M. and counsel G. had been unlawfully used as evidence in the criminal proceedings, that G. had been unlawfully removed as counsel from his case, and that the authorities had refused to allow his brother to act as his legal representative.

38. On 18 December 2006 the Supreme Court of the Russian Federation upheld the conviction. It held, in particular, that the transcripts of the applicant’s telephone conversations with M. and G. had been correctly admitted as evidence. It further observed that the applicant’s allegations of violations of his right to defence during the preliminary investigation had been examined by the first-instance court and had been rejected as unsubstantiated.

B. The applicant’s detention pending investigation and trial

39. The applicant was arrested on 27 December 2003.

40. On 29 December 2003 the Murmansk Regional Court remanded the applicant in custody. It held that he was suspected of particularly serious offences, did not have a permanent job, and that his assertions that he owned a family business were unconvincing. There were therefore sufficient reasons to believe that he might abscond, obstruct the course of justice, and continue his criminal activities.

41. On 24 February and 18 June 2004 the Regional Court ordered extensions of the applicant’s detention, citing the need for further investigation, the gravity of the charges and the risks of the applicant absconding, putting pressure on witnesses and obstructing the course of justice. There were no factors relating to the applicant’s character, state of health, family or other circumstances which would warrant release. The applicant did not appeal against those extension orders.

42. On 11 October 2004 the criminal case file was transferred to the Regional Court for trial. On 22 October 2004 the Regional Court ordered the applicant’s and his co-defendants’ detention during trial, referring to the gravity of the charges and the lack of permanent employment “at the time of the commission of the crimes”. It considered that the grounds which had served as the basis for the preventive measure remained valid. The applicant did not appeal.

43. On 5 April, 4 July, 7 October and 29 December 2005 and 7 April 2006 the Regional Court extended the applicant’s and his co-defendants’ detention, finding that the grounds which had served as the basis for the preventive measure remained valid and that there were therefore no reasons to change it. The trial could not proceed for objective reasons as it was necessary to wait for the results of a psychological expert examination of S. and for the transfer for questioning of two prosecution witnesses against S.

44. The applicant appealed against the above extension orders to the Supreme Court. He submitted that he had been permanently residing in Murmansk, that he had been working in the family business, that he had no previous convictions and that he had no intention of absconding from the authorities. The authorities had failed to substantiate their allegations that he might abscond or continue with his criminal activity. As regards the risk that he might put pressure on witnesses, it was no longer relevant as all the witnesses had already been questioned by the trial court. According to the applicant, the extension of his detention had been based solely on the gravity of the charges against him. The trial had been adjourned for reasons which were not related to his personal situation, but in order to carry out expert psychological examinations of one of the co-accused and to ensure the transfer from Moscow of two prosecution witnesses who were to give evidence against that same co-accused. He asked to be released on bail or on his father’s personal guarantee.

45. On 11 August, 9 November and 15 December 2005 and 30 March 2006 the Supreme Court upheld the above extension orders on appeal, referring to the gravity of the charges and the risks of the applicant absconding or putting pressure on witnesses. The fact that the witnesses had already been questioned was irrelevant because the applicant might still put pressure on them or otherwise obstruct the trial.

C. The conditions of the applicant’s detention

1. The Government

46. The applicant was held as follows: in remand prison no. IZ-51/1 (SIZO-1) in Murmansk from 30 December 2003 to 21 May 2006; in correctional facility no. IK-16 in Murmashi, Murmansk Region, in a special wing with the material conditions of detention of a remand prison (ПФРСИ - помещение, функционирующее в режиме следственного изолятора) from 21 May to 9 October 2006; in remand prison no. IZ-35/2 in Vologda from 12 to 17 October 2006; and in remand prison no. IZ-77/3 in Moscow from 18 October 2006 to 24 January 2007.

47. The Government submitted that it was impossible to provide original documentation concerning the conditions of the applicant’s detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk because all the official records had been destroyed after the expiry of the statutory period for their storage. In respect of that detention facility they submitted only statements and reports prepared by the prison authorities in 2010. They also submitted copies of the prison population register for the entire periods of the applicant’s detention in correctional facility no. IK-16 in Murmashi and in remand prison no. IZ-35/2 in Vologda, and selected pages from the prison population register for the period of detention in remand prison no. IZ-77/3 in Moscow.

48. The Government submitted the following information about the applicant’s detention, which was based on the above-mentioned documents:

Detention facility	Cell No.	Period of detention	Surface area (in square metres)	Number of inmates	Number of beds
remand prison IZ-51/1 (SIZO-1) in Murmansk	331	30 December 2003 to 5 January 2004	13.1		3
	417	5 January to 6 February 2004	12.8		3
	315	6-16 February 2004	12.9		3
	312	16 February to 14 April 2004	13.3		3
	315	14-21 April 2004	12.9		3
	423	21 April to 6 December 2004	12.9		3
	210	6-10 December 2004	12.8		3
	203	10 December 2004 to 28 July 2005	24.4		6
	212	28 July to 10 August 2005	23.6		5
	307	10-11 August 2005	13.3		3
	417	11-16 August 2005	12.8		3
	219	16-19 August 2005	13.4		3
	417	19-30 August 2005	12.8		3
	307	30 August to 17 October 2005	13.3		3
	403	17 October to 24 November 2005	16.6		4
	406	24 November 2005 to 6 March 2006	22.7		5
	215	6-9 March 2006	12.8		3
	301	9-17 March 2006	3.6		1
	405	17 March to 21 May 2006	22.7		5
correctional facility IK-16 in Murmashi, Murmansk Region	10	21 May to 20 July 2006	24.9	5-6	6
	9	21 July to 9 October 2006	26.2	4-6	6
IZ-35/2 in Vologda	198	12-17 October 2006	49.3	14-30
remand prison IZ-77/3 in Moscow	434	18 October to 24 January 2007	18.3	6-8

49. The Government asserted that in all the cells where the applicant had been detained between 2003 and 2007, the number of inmates had not exceeded the number of beds and that at all times while in detention the applicant had been provided with an individual sleeping place. At the same time, the Government submitted as follows:

“... during the applicant’s detention the sanitary norm for space per inmate was not always complied with. However, it happened only occasionally ... and the prosecutor’s office demanded that these infractions be eliminated ...”

50. Relying on the statements and reports prepared by the prison authorities in 2010, the Government further submitted that the applicant had been provided with bed sheets and cutlery. The cells were cleaned daily by the inmates and the administration of the penal institutions carried out a sanitary treatment of the premises every month.

51. All cells were equipped with wash basins supplying cold water; hot water was available for personal and household needs. In addition, the inmates were allowed to use their own kettles and water heaters.

52. At all times in all the remand prisons, the applicant and the other inmates were allowed to take a fifteen-minute shower once a week; their linen was changed weekly.

53. The applicant and other inmates were allowed to take one hour’s daily exercise in specially equipped yards.

2. The applicant

54. According to the applicant, remand prison no. IZ-51/1 (SIZO-1) in Murmansk had been severely overcrowded and the space available to him had been below the domestic standards. The applicant contested the accuracy of the data submitted by the Government about the designated number of bunk beds within the cells. For instance, in cell no. 423 the actual number of bunk beds had been eight and not three as submitted by the Government, as could be seen from the photographs he had submitted to the Court. Cell no. 406 had seven sleeping bunks and housed up to nine inmates.

55. In reply to the applicant’s complaints about poor conditions of detention, the Murmansk regional prosecutor’s office stated, on 14 November 2005, as follows:

“... the applicant’s complaints ... that the conditions of detention in SIZO-1 were not fully compatible with the sanitary regulations prescribed by the Federal Law on pre-trial detention ... that the minimum individual space prescribed by the Law (4 sq. m per person) was not always complied with, that the premises needed repair, that the walls in some of the cells were stained with mould and crumbling, that the plumbing was often out of order, that not all the cells were equipped with a sufficient number of shelves and TV sets, that broken glass in the windows was not replaced promptly and that there were no refrigerators - [all these complaints] reflect the reality.

These deficiencies were noted by the prosecutor’s office during their inspection of SIZO-1.”

56. On 25 April 2006 the Murmansk regional prosecutor’s office stated:

“... in 2005-06 the number of detainees in SIZO-1 frequently exceeded the prescribed limits. For these reasons it was not always possible to comply with the sanitary regulations (4 sq. m per inmate). For the same reasons the requirements concerning the separate detention of different categories of detainees were sometimes not complied with ...”

57. As regards correctional facility no. IK-16 in Murmashi, the applicant stated that during his stay there he had been detained in inadequate conditions. The cells had been overcrowded. The space available to him throughout the detention period had been below the domestic standards. In particular, he had shared a cell measuring 20 sq. m with five other detainees.

58. On 28 September 2006 the applicant complained to the Murmansk Regional Department for the Execution of Sentences of inadequate conditions of detention in IK-16. In particular, he complained of poor nutrition, overcrowding, a lack of newspapers and television sets, and of the authorities’ refusal to make copies of documents at inmates’ requests. He received no reply.

59. Furthermore, as regards remand prison no. IZ-35/2 in Vologda, the applicant stated that the quality of the food in the prison had been extremely poor. He had been detained with thirty-six other detainees in a cell measuring 50 sq. m. The cell had been infested with cockroaches, bedbugs and rats. The detainees had slept on bunk beds.

60. Lastly, as regards remand prison no. IZ-77/3 in Moscow, according to the applicant, he had been held in cell 434, which measured 13 sq. m, with seven other detainees. The inmates had slept on bunk beds. There had been a table measuring 1 m by 0.3 m but no benches or chairs to sit on. The cell had been swarming with insects. The inmates had been allowed to take exercise only in groups.

D. Conditions of the applicant’s transfer between detention facilities

1. The applicant

61. From 9 to 12 October 2006 the applicant was transferred by train from Murmansk to Vologda. He was given no food. He received his first meal on 13 October 2006.

62. On 17 and 18 October 2006 the applicant was transferred by train from Vologda to Moscow.

63. From 24 January to 9 February 2007, on the way from Moscow to Murmansk, between St Petersburg and Murmansk, the applicant was transported in cramped conditions in a compartment with up to sixteen other inmates, some of whom were suffering from tuberculosis.

2. The Government

64. As regards the conditions of the applicant’s transportation between Murmansk and Vologda from 9 to 12 October 2006, the applicant was transported in a compartment with other inmates, none of whom were suffering from tuberculosis. He was transferred from Vologda railway station to the local remand prison IZ-35/2 in a special vehicle separately from other inmates.

65. When the applicant was transferred from Vologda railway station to Moscow on 17 and 18 October 2006, he was not transported with inmates who were suffering from tuberculosis.

66. When the applicant was transferred from Moscow to Murmansk between 24 January and 9 February 2007, he was transported first alone in the railway compartment, then from St Petersburg onwards he was transported with other inmates, none of whom were suffering from tuberculosis.

67. During the transfers the applicant was duly provided with dry food rations; he was given permission to use hot water and the toilet.

68. The applicant did not lodge any complaints about the conditions of his transportation between Murmansk and Moscow. He did not apply for medical assistance, nor did he complain about the state of his health.

69. In their submission the Government neither specified the number of inmates transported with the applicant, nor the size of the compartments in which they had travelled. Nor did they submit any copies of documents regarding that part of the applicant’s complaints, including the distribution of dry rations for the trip.

II. RELEVANT DOMESTIC LAW

A. Conditions of detention and preventive measures in the criminal proceedings

70. For a summary of the relevant domestic law concerning conditions of detention and preventive measures, including remand in custody, see Idalov v. Russia ([GC], no. 5826/03, §§ 70-73, 22 May 2012), and Zherebin v. Russia (no. 51445/09, §§ 16-26, 24 March 2016).

B. Interception of communications

71. The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). It further guarantees the right to respect for correspondence, telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order (Article 23 § 2).

72. The Russian Code of Criminal Procedure of 2001 (“the CCrP”) provides that investigative measures involving a search in a person’s home or interception of his or her telephone calls and other communications are subject to prior judicial authorisation. A request to search a person’s home or intercept his or her communications must be submitted by an investigator with a prosecutor’s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request decides whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP).

73. Interception of telephone and other communications of a suspect, an accused or other person may be authorised by a court if there are reasons to believe that they may contain information relevant for the criminal case in respect of a serious offence or an especially serious criminal offence (Article 186 § 1 of the CCrP, as in force at the material time). If there is a risk of violence, extortion or other criminal acts against the victim, a witness or their close relations, interception of telephone and other communications may be carried out at their written request or, in the absence of such request, on the basis of judicial authorisation (Article 186 § 2 of the CCrP).

74. A request for judicial authorisation to intercept communications must clearly mention the following: (1) the criminal case to which the request is related; (2) the grounds for conducting the requested measures; (3) the family name, the first name and the patronymic of the person whose communications are to be intercepted; (4) the duration of the requested measure; and (5) the State agency that will perform the interception (Article 186 § 3 of the CCrP).

75. The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186 §§ 4 and 5 of the CCrP).

C. Right to legal assistance

76. The CCrP provides that advocates (qualified lawyers who are members of the Bar) may act as counsel in criminal proceedings. At the defendant’s request the judge may allow a close relative or any other person to represent the defendant along with the advocate (Article 49 § 2 of the CCrP).

77. To be admitted to act as counsel in criminal proceedings, an advocate must produce a practising certificate (удостоверение адвоката) and an instruction by a Bar association to act as counsel in a specific case (ордер) (Article 49 § 4 of the CCrP).

78. Counsel may participate in the proceedings from the date when criminal proceedings are opened against a specific person, when charges are brought, when the person is arrested or detained, or when any investigative measures capable of affecting the person’s rights are taken (Article 49 § 3 of the CCrP).

79. Counsel may be removed by the investigator or the court in the following cases: (i) he or she previously participated in the current criminal proceedings as a judge, prosecutor, investigator, court stenographer, witness, expert, translator or attesting witness; (ii) he or she is a close relative of the judge, prosecutor, investigator or court stenographer who has earlier participated in the current criminal proceedings, or a close relative of a person whose interests contradict the interests of the party who is retaining counsel; or (iii) he or she previously represented a person whose interests contradict the interests of the party who is retaining counsel (Article 72 of the CCrP).

80. The Federal Law on Advocacy of 31 May 2002 (no. 63-FZ, hereafter “the Advocates Act”, as in force at the material time) provides that an advocate represents his client on the basis of a legal services agreement between them (section 25 of the Advocates Act). In cases provided for by federal law, an advocate must obtain an instruction from a Bar association to represent a client in a specific case. In other cases an advocate represents his client on the basis of a power of attorney (section 6(2) of the Advocates Act).

81. An advocate may not accept an obviously unlawful assignment from a client (section 6(4)).

82. Section 8 of the Advocates Act provides as follows:

“1. Any information relating to legal representation of a client by an advocate falls within legal professional privilege.

2. An advocate cannot be questioned as a witness concerning matters which have become known to him as a result of representing the client or as a result of an application for legal representation by a prospective client.

3. Operational search measures and investigative measures in respect of an advocate (including in residential or working premises used by an advocate for his professional activities) are allowed only on the basis of a court order.

Information, objects and documents obtained as a result of operational search measures and investigative measures (even if they are performed after the advocate’s practising certificate has been suspended or annulled) may be used as evidence in criminal proceedings only if they are not included in the advocate’s case files concerning his clients. These limitations do not apply to weapons of crime and objects with limited or prohibited circulation as prescribed by the law of the Russian Federation.”

83. In its decision no. 128-О of 6 July 2000 the Constitutional Court held that legal professional privilege covered all information which had become known to the advocate as a result of representing the client, including any information communicated by the client before the advocate had been formally admitted as counsel in criminal proceedings.

III. RELEVANT INTERNATIONAL MATERIAL

84. Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:

“Principle I - General principles on the freedom of exercise of the profession of lawyer

...

6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

85. Referring to Article 8 of the Convention, the applicant complained that the authorities had violated his right to respect for his private life by tapping his telephone conversations in December 2003, including conversations with his counsel and an accomplice. Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

86. The Court considers that the applicant’s complaint under Article 8 of the Convention 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.

B. Merits

1. The parties’ submissions

87. The Government submitted that the interception of the applicant’s telephone communications had been ordered by a court as required by law. It transpired from the court orders that the police had intelligence information about the applicant being the leader of a criminal gang. The transcripts of his telephone conversations had been admitted as evidence in the criminal proceedings against him. The tapping of his telephone had therefore been lawful and proportionate to the legitimate aim of protecting public safety and the rights and freedoms of others.

88. The applicant reiterated his complaint. He submitted, in particular, that the telephone tapping had been in breach of section 8 of the Advocates Act. The telephone conversations with his counsel on 26 and 27 December 2003 should have been protected by legal professional privilege, taking into account that G. had been retained as his legal representative on 25 December 2003.

2. The Court’s assessment

89. The Court accepts, and it is not disputed by the parties, that the interception of the applicant’s telephone communications amounted to an interference with the exercise of his right to respect for his “private life” and “correspondence”, as set out in Article 8 of the Convention.

90. The Court reiterates that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 45, 8 March 2011).

91. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015).

92. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008). In the context of covert surveillance, the assessment depends on all the circumstances of the case, such as the nature, scope and duration of the surveillance measures, the grounds for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232).

(a) Interception of telephone conversations with an accomplice on the basis of the judicial authorisation of 23 December 2003

93. The Court observes that on 24 and 25 December 2003 the police intercepted the applicant’s conversations with one of his accomplices. Judicial authorisation for the interception had been given on 23 December 2003.

94. As regards the question of lawfulness of the interception, it has not been disputed by the parties that the covert surveillance of the applicant had a basis in domestic law, namely in the relevant provisions of the CCrP.

95. Although the applicant has not complained that the quality of the domestic law fell short of the Convention standards, when examining whether the interference complained of was “in accordance with the law”, the Court must assess the quality of the relevant domestic law in relation to the requirements of the fundamental principle of the rule of law (see Dragojević v. Croatia, no. 68955/11, § 86, 15 January 2015). The Court notes in this connection that in the case of Roman Zakharov v. Russia it has already found that Russian law does not meet the “quality of law” requirement because the legal provisions governing the interception of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse. They are therefore incapable of keeping the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, §§ 302-04). In the present case, however, where the applicant’s complaints were based on specific and undisputed instances of covert surveillance, the Court’s assessment of the “quality of law”, although it necessarily entails some degree of abstraction, cannot be of the same level of generality as in cases such as Roman Zakharov, which concern general complaints about the law permitting covert surveillance and in which the Court must, of necessity and by way of exception to its normal approach, carry out a completely abstract assessment of such law. In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva, cited above, § 48).

96. In the Roman Zakharov case the Court has found, in particular, that the judicial authorisation procedures provided for by Russian law are not capable of ensuring that covert surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration. In particular, the CCrP does not instruct judges ordering covert surveillance measures to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” tests. The Court has also found it established, on the basis of evidence submitted by the parties, that in their everyday practice the Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “necessity” and “proportionality” tests (see Roman Zakharov, cited above, §§ 260-67).

97. There is no indication in the case file that the Russian courts acted differently in the present case. Although the court noted, without any further details, that the police had “intelligence information” that the applicant was the leader of a gang and planned to commit extortions (see paragraph 7 above), it did not mention any facts or information that would satisfy an objective observer that the applicant might have committed or planned the offences. There is no evidence that any information or documents confirming the suspicion against the applicant had actually been submitted to the judge.

98. Furthermore, there is no indication in the text of the surveillance authorisation that the court applied the test of “necessity in a democratic society”, and in particular assessed whether the surveillance measures carried out against the applicant were proportionate to any legitimate aim pursued. In particular, the court failed to recognise that the case involved a conflict between the right to respect for private life and correspondence and other legitimate interests and to perform a balancing exercise. The only reason advanced by the court to justify the surveillance measures was that it “seem[ed] impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation”, without explaining how it had come to that conclusion. The Court does not consider that such a vague and unsubstantiated statement was sufficient to justify the decision to authorise a lengthy (180 days) covert surveillance operation, which entailed a serious interference with the right to respect for the applicant’s private life and correspondence.

99. To sum up, the Court finds that the domestic court that authorised covert surveillance measures against the applicant did not verify whether there was a “reasonable suspicion” against him and did not apply the “necessity in a democratic society” and “proportionality” tests.

100. There has accordingly been a violation of Article 8 of the Convention.

(b) Interception of telephone conversations with counsel on the basis of the judicial authorisation of 26 December 2003

101. The Court further observes that on 26 and 27 December 2003 the police intercepted the applicant’s conversations with his lawyer, G. Judicial authorisation for intercepting the applicant’s telephone conversations had been given on 26 December 2003.

102. The Court notes at the outset that the judicial authorisation of 26 December 2003 repeated almost verbatim, with some abridgments, the judicial authorisation of 23 December 2003 and therefore suffered from the same defects. In particular, there is no indication in the text of the surveillance authorisation that the judge verified whether there was a “reasonable suspicion” against the applicant or applied the “necessity in a democratic society” and “proportionality” tests (see paragraph 11 above).

103. While tapping the applicant’s telephone on the basis of that authorisation, the police intercepted the applicant’s conversations with his counsel, G. It is true that at the time the authorities did not know that G. had been retained as counsel by the applicant. However, even after being informed about that fact, the domestic authorities refused to recognise the transcripts of the conversations in question as legally privileged and used them as evidence in criminal proceedings against the applicant, finding that G. had not yet been formally admitted as the applicant’s counsel at the time when the interception had taken place. In the Court’s opinion, it is of no importance that at the time of the interception G. had not yet been formally admitted as counsel in the criminal proceedings against the applicant. As explained by the Constitutional Court, under Russian law legal professional privilege protects all information which has become known to the advocate as a result of representing a client, including any information communicated by the client before the advocate has been formally admitted as counsel in criminal proceedings (see paragraph 83 above).

104. The Court reiterates that, while Article 8 protects the confidentiality of all correspondence between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential (see Michaud v. France, no. 12323/11, § 118, ECHR 2012, and R.E. v. the United Kingdom, no. 62498/11, § 131, 27 October 2015).

105. In its case-law the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power in cases where legally privileged material has been acquired through measures of secret surveillance.

106. Firstly, the law must clearly define the scope of the legal professional privilege and state how, under what conditions and by whom the distinction is to be drawn between privileged and non-privileged material. Given that the confidential relations between a lawyer and his clients belong to an especially sensitive area which directly concern the rights of the defence, it is unacceptable that this task should be assigned to a member of the executive, without supervision by an independent judge (see Kopp v. Switzerland, 25 March 1998, §§ 73 and 74, Reports of Judgments and Decisions 1998-II).

107. Secondly, the legal provisions concerning the examination, use and storage of the material obtained, the precautions to be taken when communicating the material to other parties, and the circumstances in which recordings may or must be erased or the material destroyed must provide sufficient safeguards for the protection of the legally privileged material obtained by covert surveillance. In particular, the national law should set out with sufficient clarity and detail: procedures for reporting to an independent supervisory authority for review of cases where material subject to legal professional privilege has been acquired as a result of secret surveillance; procedures for secure destruction of such material; conditions under which it may be retained and used in criminal proceedings and law-enforcement investigations; and, in that case, procedures for safe storage, dissemination of such material and its subsequent destruction as soon as it is no longer required for any of the authorised purposes (see R.E. v. the United Kingdom, cited above, §§ 138-39).

108. The Court notes that Russian law proclaims protection of legal professional privilege, which is understood as covering any information relating to legal representation of a client by an advocate (see paragraphs 82 and 83 above). It does not, however, contain any specific safeguards applicable to interception of lawyers’ communications; lawyers are subject to the same legal provisions on interception of communications as anyone else. The Court has already found that these legal provisions do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse and are therefore incapable of keeping the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, §§ 302-04).

109. Most importantly for the case at hand, the domestic law does not provide for any safeguards to be applied or any procedures to be followed in cases where, while tapping a suspect’s telephone, the authorities accidentally intercept the suspect’s conversations with his or her counsel (compare R.E., loc. cit.).

110. It follows that Russian law does not provide for any safeguards against abuse of power in cases where legally privileged material has been acquired through measures of secret surveillance and does not therefore meet the “quality of law” requirement. It also follows that the surveillance measures applied to the applicant did not meet the requirements of Article 8 § 2 of the Convention as elucidated in the Court’s case-law.

111. There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONDITIONS OF THE APPLICANT’S DETENTION

112. The applicant complained that the conditions of his detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk between 30 December 2003 and 21 May 2006, in correctional facility no. IK-16 in Murmashi between 21 May and 9 October 2006, in remand prison no. IZ-35/2 in Vologda between 12 and 17 October 2006, and in remand prison no. IZ-77/3 in Moscow between 18 October 2006 and 24 January 2007 had been inadequate. Article 3 of the Convention provides as follows:

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

A. Admissibility

113. The Government submitted that the applicant had not exhausted domestic remedies, because he had not applied to the Russian courts with claims for compensation in respect of non-pecuniary damage in connection with the allegedly inhuman conditions of his detention.

114. The Court notes that it has already found that the Russian legal system does not at present dispose of an effective remedy in connection with a complaint about inadequate conditions of detention in remand prisons (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 99-119). Nor does it provide for an effective remedy for a complaint about inadequate conditions of detention in correctional colonies (see Butko v. Russia, no. 32036/10, § 42-47, 12 November 2015). It therefore rejects the Government’s objection concerning the non-exhaustion of domestic remedies.

115. Furthermore, the Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

116. The Government submitted that the conditions of the applicant’s detention had been in compliance with the standards required under Article 3 of the Convention.

117. The applicant challenged the Government’s arguments and submitted, in particular, that the cells where he had been detained had been severely overcrowded. He also complained of inadequate sanitary conditions.

118. A summary of relevant principles can be found in the recent Grand Chamber judgment of Muršić v. Croatia ([GC], no. 7334/13, § 136-41, 20 October 2016, with further references).

119. The Court notes that the Government did not provide any original documents in respect of remand prison no. IZ-51/1 (SIZO-1) in Murmansk, concerning the size of the cells, the number of beds available therein and the number of detainees sharing them, claiming that they had been destroyed after the expiry of the statutory time-limit. The Government’s submissions that the conditions of the applicant’s detention had been satisfactory were based on statements given by the prison officials several years after the events in question. The Court has repeatedly declined to accept the validity of similar statements on the grounds that they could not be viewed as sufficiently reliable, given the lapse of time involved and the absence of any supporting documentary evidence (see Belashev v. Russia, no. 28617/03, § 52, 13 November 2007; Sudarkov v. Russia, no. 3130/03, § 43, 10 July 2008; Kokoshkina v. Russia, no. 2052/08, § 60, 28 May 2009; Kozhokar v. Russia, no. 33099/08, § 95, 16 December 2010; Idalov v. Russia [GC], no. 5826/03, §§ 99-100, 22 May 2012; and Zentsov and Others v. Russia, no. 35297/05, § 43, 23 October 2012). These statements are therefore of little evidentiary value for the Court. In particular, the Court considers that the Government have not substantiated their argument that the number of inmates in the applicant’s cells did not exceed the capacity they were designed for.

120. As regards remand prison no. IZ-77/3 in Moscow, the Government submitted only copies of certain pages of the prison population register. The Court finds such incomplete and selective evidence unconvincing (see, for similar reasoning, Sudarkov, cited above, § 43; Kokoshkina, cited above, § 60; and Vyatkin v. Russia, no. 18813/06, § 40, 11 April 2013).

121. The Court further observes that the applicant described the conditions of his detention in detail and submitted colour photographs of one of his cells. His allegations of overcrowding as regards remand prison no. IZ-51/1 (SIZO-1) in Murmansk were supported by letters from the prosecutor acknowledging that the remand prison was overpopulated at the material time (see paragraphs 55 and 56 above). His allegations of overcrowding as regards remand prison no. IZ-35/2 in Vologda and remand prison no. IZ-77/3 in Moscow find support in the information submitted by the Government, which permits the Court to establish that the applicant was afforded between 1.6 sq. m and 3.5 sq. m of personal space there.

122. It follows from the material in the case file that for at least part of his three-year detention the applicant had less than three square metres of personal space. The Court reiterates in this connection that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq. m in multi-occupancy accommodation (see Muršić, cited above, § 124). The Government have not demonstrated that in the present case there were factors capable of adequately compensating for the scarce allocation of personal space and rebutting that presumption.

123. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONDITIONS IN WHICH THE APPLICANT WAS TRANSPORTED

124. The applicant complained that the conditions in which he had been transported between detention facilities had been inadequate. He relied on Article 3 of the Convention.

A. Admissibility

125. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

126. The Government submitted that the applicant had been transported in conditions compatible with the requirements of Article 3 of the Convention.

127. The applicant maintained his claims.

128. The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. 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 validity of the applicant’s allegations (see, among other authorities, Fadeyeva v. Russia, no. 55723/00, § 79, ECHR 2005-IV, and Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).

129. The parties gave different descriptions of the general conditions in which the applicant had been transported between detention facilities. The Government, however, did not submit any documents in support of their position that the conditions of transport had been satisfactory. In particular, they did not submit documents indicating the size of the train compartments or the number of inmates transported together with the applicant. Nor did they submit any documents confirming that he had received dry rations before the departure or meals during the journey. Having regard to the fact that the Government, who alone have access to documents relating to the conditions in which the applicant was transported, failed to produce them, the Court will examine the issue on the basis of the applicant’s submissions.

130. The Court notes that the applicant was not given any food during his four-day trip from Murmansk to Vologda. The Court has already found that the clear insufficiency of food given to an applicant may in itself raise an issue under Article 3 of the Convention (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Guliyev v. Russia, no. 24650/02, § 62, 19 June 2008).

131. The Court further notes that during his transfer from St Petersburg to Murmansk, which lasted several days, the applicant was transported in cramped conditions with up to sixteen other inmates in a compartment. The Court finds that the severe overcrowding of the railway carriage, providing practically no personal space to the applicant, amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see Guliyev, cited above, §§ 66-70; Sudarkov, cited above, §§ 63-69; M.S. v. Russia, no. 8589/08, §§ 78-79, 10 July 2014; and Idalov v. Russia (no. 2), no. 41858/08, § 110-12, 13 December 2016, all concerning conditions of transport by rail).

132. There has therefore been a violation of Article 3 of the Convention on account of the conditions in which the applicant was transported by rail between detention facilities.

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

133. The applicant complained that his pre-trial detention from 27 December 2003 to 12 May 2006 had been too long, and that it had not been based on relevant or sufficient reasons. He relied on Article 5 § 3 of the Convention, 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. Admissibility

134. The Court considers that the applicant’s complaint under Article 5 § 3 of the Convention 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.

B. Merits

135. The Government submitted that the applicant’s detention had been justified not only by the gravity of the charges against him, but also by the risk that he would abscond from the authorities, obstruct the course of justice, and continue with criminal activities. In particular, he had been charged with membership of an organised criminal gang and had attempted to go into hiding and destroy incriminating evidence prior to his arrest.

136. The applicant stated that in extending his detention the domestic courts had relied exclusively on the gravity of the charges against him. He had lodged a number of requests with the courts to be released, either on bail or on his father’s personal guarantee, but those requests had been refused without a proper examination of all the relevant factors. The reasons for his initial placement in custody had changed, and the factors which had served as the grounds for the detention had become irrelevant with the passage of time.

137. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references).

138. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts had extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012; and Zherebin v. Russia, no. 51445/09, §§ 59-63, 24 March 2016).

139. Having regard to the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The applicant was kept in detention during the criminal proceedings for more than two years and four months. The domestic courts inferred that he might abscond, reoffend or interfere with the proceedings essentially from the gravity of the charges against him. They did not point to any aspects of the applicant’s character or behaviour that would justify their conclusion that he presented such risks. The Government referred to his presumed membership of an organised criminal gang and his previous attempt to go into hiding and destroy incriminating evidence. The Court reiterates that it is not its task to take the place of the national authorities who ruled on the applicant’s detention and to supply its own analysis of the facts arguing for or against detention (see Mamedova, cited above, § 79, with further references). However, the domestic courts did not rely on the circumstances referred to by the Government in their decisions. Lastly, after the case had been submitted for trial the domestic courts issued collective detention orders, using the same summary formula to refuse the applications for release and to extend the pre-trial detention of three people.

140. Having regard to the above, the Court considers that by failing to address specific facts or consider alternative “preventive measures”, by relying essentially on the gravity of the charges and by issuing collective detention orders, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

141. There has accordingly been a violation of Article 5 § 3 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

142. Referring to Article 6 § 1 of the Convention, the applicant alleged a violation of his right to trial within a reasonable time. Article 6 § 1 of the Convention, as far as relevant, provides as follows:

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

143. The Government submitted that the length of the criminal proceedings against the applicant had not been unreasonable and had been justified by the complexity of the criminal case against him. In particular, they pointed out that the investigation had involved at least seven charges of serious offences against the criminal gang and that the case file had represented a joint investigation of five related criminal cases. The domestic court had had to examine numerous pieces of evidence contained in twelve volumes of the investigation file, and question six victims and twenty-four witnesses who lived in Murmansk and Moscow. They further stressed that the trial court had ordered, at the request of defence counsel, including that of the applicant, three expert assessments. Two of those were ordered in respect of the applicant’s accomplice, S., and lasted for almost seven months. Moreover, the court had granted S.’s request to question witnesses against him, and those witnesses could not have been transferred from Moscow to Murmansk more quickly, as they themselves had been on trial in a criminal case.

144. The applicant reiterated his complaint and stated that the unreasonable length of the criminal proceedings against him had been caused by the examination of the criminal case against his accomplice, S.

145. Having examined all the material before it, the Court considers that for the reasons stated below, the respondent Government cannot be held liable for the allegedly excessive length of the criminal proceedings against the applicant.

146. In particular, the Court notes that having regard to the overall length of the proceeding (three years), the complexity of the case, the conduct of the applicant and his co-defendants and that of the authorities, including the diligence they displayed while dealing with the case, and the levels of jurisdiction involved, the length of the proceedings was not excessive and met the “reasonable time” requirement (see, among other authorities, Khanov and Others v. Russia (dec.), nos. 15327/05 and 15 others, 30 June 2016, with further references).

147. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

148. Referring to Article 6 §§ 1 and 3 (c) of the Convention, the applicant alleged that he had been unable to defend himself through legal assistance of his own choosing. The relevant part of Article 6 of the Convention provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

A. Admissibility

149. The Court considers 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.

B. Merits

1. The parties’ submissions

150. The Government submitted that the applicant’s right to defence had been guaranteed during the criminal proceedings. In particular, he had been represented by a lawyer throughout the entire proceedings. He had been defended by counsel of his own choosing and the domestic court’s refusal to allow the applicant’s brother to act as his legal representative had been in compliance with the domestic regulations; the applicant’s requests for new counsel had been granted immediately.

151. The applicant submitted that his first lawyer, G., had been unlawfully removed as his counsel by the investigator, that the legal aid counsel appointed instead had failed to provide him with adequate legal assistance and that the trial court had unlawfully refused his request to allow his brother to act as his counsel at the trial.

2. The Court’s assessment

152. The relevant principles have been summarised in Dvorski v. Croatia ([GC], no. 25703/11, § 76-82, ECHR 2015) as follows:

“81. Unlike in Salduz, where the accused, held in custody, had been denied access to a lawyer during police questioning, the present case concerns a situation where the applicant was afforded access to a lawyer from his first interrogation, but not - according to his complaint - a lawyer of his own choosing. In contrast to the cases involving denial of access, the more lenient requirement of ‘relevant and sufficient’ reasons has been applied in situations raising the less serious issue of ‘denial of choice’. In such cases the Court’s task will be to assess whether, in the light of the proceedings as a whole, the rights of the defence have been ‘adversely affected’ to such an extent as to undermine their overall fairness (see, for example, Croissant, cited above, § 31; Klimentyev, cited above, §§ 117-18; and Martin, cited above, §§ 96-97).

82. It is the latter test which is to be applied in the present case. Against the above background, the Court considers that the first step should be to assess whether it has been demonstrated in the light of the particular circumstances of each case that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings. In making its assessment, the Court may have regard to a variety of factors, including the nature of the proceedings and the application of certain professional requirements (see Meftah and Others, cited above, §§ 45-48, and Martin, cited above, § 90); the circumstances surrounding the designation of counsel and the existence of opportunities for challenging this (ibid., §§ 90-97); the effectiveness of counsel’s assistance (see Croissant, cited above § 31, and Vitan, cited above §§ 58-64); whether the accused’s privilege against self-incrimination has been respected (see Martin, cited above, § 90); the accused’s age (ibid., § 92); and the trial court’s use of any statements given by the accused at the material time (see, for example, Croissant, cited above, § 31, Klimentyev, cited above, §§ 117-118; and Martin, cited above, §§ 94-95). It is further mindful that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Imbrioscia, cited above, § 38; Goddi v. Italy, 9 April 1984, § 30, Series A no. 76; and Salduz, cited above, § 55) and that in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation (see, inter alia, Delcourt v. Belgium, 17 January 1970, § 31, Series A no. 11; De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 48, Series A no. 77; Pavlenko, cited above, § 112; and Erkapić v. Croatia, no. 51198/08, §§ 80-82, 25 April 2013). In cases where the accused had no legal representation, the Court also took into consideration the opportunity given to the accused to challenge the authenticity of evidence and to oppose its use (see Panovits, cited above, § 82), whether the accused is in custody (Salduz, cited above, § 60); whether such statements constituted a significant element on which the conviction was based and the strength of the other evidence in the case (Salduz, cited above, § 57; and Panovits cited above, §§ 76 and 82).”

153. It follows from the documents in the case file that between December 2003 and August 2004, during the investigation, the applicant was represented by counsel of his own choosing, G. In August 2004, owing to G.’s absence on holiday until October 2004, legal aid counsel was appointed to carry out the necessary procedural steps. Several days later G. was removed as the applicant’s counsel by reference to the need to question him as a witness about events that had occurred before he had been formally admitted as counsel for the applicant in the criminal proceedings. Immediately after the start of the trial at the beginning of November 2004 the trial court refused to allow the applicant’s brother to act as his counsel, finding that the brother was a civil lawyer who had no experience in criminal law and procedure and that the applicant was already represented by experienced legal aid counsel. The next day, however, legal aid counsel was replaced at the applicant’s request by counsel of his choosing, AM., who represented him throughout the trial.

154. The Court will first examine whether there were relevant and sufficient reasons in the interests of justice for refusing to allow the applicant’s brother to act as his counsel and for removing G. as the applicant’s counsel. In the Court’s opinion, the trial court provided relevant and sufficient reasons for the refusal in respect of the applicant’s brother, finding that as a lawyer specialising in civil matters he would not be able to ensure efficient defence for the applicant in compliance with the criminal procedure.

155. By contrast, the Court is not persuaded that the reasons advanced for removing G. were relevant and sufficient. The only reason for removing G. was the investigator’s finding that it would be useful to question him about the telephone conversations he had had with the applicant before he had been formally admitted as his counsel in the criminal proceedings. The Court notes in this connection that the domestic law does not provide for the removal of counsel in order to question him or her as a witness (see paragraph 79 above). The Advocates Act explicitly prohibits the questioning of an advocate about matters which have become known to him or her as a result of representing the client or as a result of an application for legal representation by a prospective client (see paragraph 82 above). As explained by the Constitutional Court, legal professional privilege covers all information which has become known to an advocate as a result of representing his or her client, including any information communicated by the client before the advocate had been formally admitted as counsel in criminal proceedings (see paragraph 83 above). It is also significant that the domestic law at the material time did not provide for an exception to the legal professional privilege in the case of its suspected abuse, for example in furtherance of criminal or fraudulent conduct. In any event, there is no evidence in the case file that disciplinary or criminal proceedings were opened against G. in connection with any abuses committed while representing the applicant.

156. The Court reiterates that communications between a lawyer and his client, whatever their purpose, enjoy privileged status where confidentiality is concerned. It attaches particular weight to the risk of impingement on the lawyer’s right to professional secrecy, since it may have repercussions on the proper administration of justice. Strengthened protection of exchanges between lawyers and their clients is justified by the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. Yet lawyers cannot carry out this essential task if there is no guarantee that their exchanges with those they are defending will remain confidential. Indirectly but necessarily dependent thereupon is the right of everyone to a fair trial, including the right of accused persons not to incriminate themselves (see, in the context of Article 8, Michaud, cited above, §§ 117-18, with further references). It is true that legal professional privilege is not inviolable and may be overridden by other important considerations (see, by way of example, situations described in Michaud, cited above, § 123, and Versini-Campinchi and Crasnianski v. France, no. 49176/11, § 78, 16 June 2016). Exceptions to the legal professional privilege must be however strictly defined, be attended by adequate and sufficient guarantees against abuse and, most importantly, should not affect the client’s defence rights (see, in the context of Article 8, Versini-Campinchi and Crasnianski, cited above, §§ 79 and 80).

157. In view of the above considerations the Court considers that no relevant and sufficient reasons have been advanced for the decision to remove G. as the applicant’s counsel. The Court must, however, also examine whether G.’s removal adversely affected the fairness of the proceedings as a whole (see Dvorski, loc. cit.).

158. The Court observes that G. represented the applicant during the major part of the investigation. He was removed and replaced by legal aid counsel at the very end of the investigation. There is no evidence in the case file that any significant investigative measures involving the applicant, such as questioning, were carried out during the two-month period while the applicant was represented by appointed legal aid counsel. It is noteworthy that during most of that period, G. was in any case unavailable to represent the applicant, being on annual leave. It is also important to note that legal aid counsel was appointed only after it had been proposed that the applicant retain another lawyer of his choosing and he had declined to do so. In so far as the applicant alleged that legal aid counsel had been ineffective, the Court notes that he has not substantiated any examples of the lawyer’s manifest negligence. As soon as the applicant expressed a wish to be represented by another lawyer of his choosing, AM., his request was allowed and AM. was immediately admitted as his counsel. He represented the applicant throughout the remainder of the criminal proceedings against him. Lastly, the Court observes that G. was ultimately not questioned as a witness against the applicant.

159. In the light of the above, and especially taking into account the short period during which the applicant was not represented by counsel of his own choosing and the fact that during that period no confession or other evidence having a significant impact on the further development of the criminal proceedings was obtained, the Court finds that G.’s removal as counsel for the applicant did not irretrievably prejudice the applicant’s defence rights or undermine the fairness of the proceedings as a whole.

160. There has therefore been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

161. Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

162. 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. Non-pecuniary damage

163. The applicant claimed 24,750 euros (EUR) in respect of non-pecuniary damage.

164. The Government submitted that the claim was excessive.

165. The Court observes that it has found violations of Articles 3, 5 § 3 and Article 8 of the Convention. Making its assessment on an equitable basis, it awards the applicant EUR 14,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

166. The applicant did not submit a claim under this head.

C. Default interest

167. 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

1. Declares, unanimously, the complaints of inhuman conditions of detention and transport, excessive length of pre-trial detention, a breach of the applicant’s right to defend himself through legal assistance of his own choosing, and a breach of his right to respect for his private life and correspondence admissible and the remainder of the application inadmissible;

2. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the the conditions of the applicant’s detention pending trial;

3. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the conditions in which the applicant was transported between detention facilities;

4. Holds, by six votes to one, that there has been a violation of Article 5 § 3 of the Convention;

5. Holds, unanimously, that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention;

6. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention on account of the interception of telephone conversations with an accomplice on the basis of the judicial authorisation of 23 December 2003;

7. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention on account of the interception of telephone conversations with counsel on the basis of the judicial authorisation of 26 December 2003;

8. Holds, by six votes to one,

(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, EUR 14,000 (fourteen thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.

H.J.
F.A.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DUDCHENKO v. RUSSIA - 37717/05 (Judgment : Remainder inadmissible - Manifestly ill-founded) [2017] ECHR 965 (07 November 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/965.html Cite as: CE:ECHR:2017:1107JUD003771705, [2017] ECHR 965, ECLI:CE:ECHR:2017:1107JUD003771705