Постановление Европейского суда по правам человека от 17.12.2009 «Дело Шилбергс (shilbergs) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHILBERGS v. RUSSIA
(Application No. 20075/03)
JUDGMENT*
(Strasbourg, 17.XII.2009)
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*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Shilbergs v. Russia,

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

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 26 November 2009,

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

PROCEDURE
1. The case originated in an application (No. 20075/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Artur Viesturovich Shilbergs ("the applicant"), on 30 May 2003.

2. The applicant, who had been granted legal aid, was represented by Mrs O. Preobrazhenskaya, a lawyer with the International Protection Centre in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been detained in inhuman conditions, that he had been unable to participate effectively in civil proceedings concerning him owing to the domestic courts' failure to ensure his presence, and that he had not been provided with legal aid on appeal in a criminal case.

4. On 12 June 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1967 and lived until his arrest in the town of Neman in the Kaliningrad Region. He is now serving his prison sentence in the correctional colony in the village of Slavyanovka, Kaliningrad Region.

A. Criminal proceedings against the applicant
6. On 16 August 2001 officers of the Krasnoznamensk town police department arrested the applicant and brought him to the temporary detention unit of the Neman town police department. A police investigator informed the applicant that he had been arrested on suspicion of aggravated robbery and that a prosecutor had authorised his detention on 29 May 2001. The applicant, having been informed of the rights of accused persons, including the right to legal aid, refused legal assistance because he considered himself innocent, and signed a record confirming his refusal. During the subsequent interview the applicant denied the accusations and consistently maintained his innocence.

7. On 28 September 2001 the applicant, who was still unrepresented, had a confrontation interview with a co-accused, Mr P., at which he was assisted by a lawyer. On a number of occasions the applicant unsuccessfully requested the investigating authorities to hold confrontations with other co-defendants, witnesses and victims.

8. On 3 October 2001 the applicant took part in a voice identification parade. The parade was performed in the presence of the applicant's lawyer and two attesting witnesses. The victim was asked to identify the alleged perpetrator by his voice. Two other individuals took part in the parade. The applicant alleged that they had had very strong accents because one of them was of Chechen ethnic origin and the other one was Lithuanian.

9. Two days later the investigator served the applicant and his counsel with the bill of indictment and allowed them to study the case file. On the following day the investigator closed the pre-trial investigation and sent the case to the Neman Town Court for trial.

10. On 12 October 2001 the Town Court remitted the case to the investigating authorities, finding that the applicant had not had sufficient time to study the file. The applicant was granted a month for examination of the file. In June 2002 the Town Court accepted a request from the applicant's counsel, Ms Z., and granted her and the applicant five days to review the file.

11. On 11 June 2002 the prosecutor asked the Neman Town Court to remit the case for an additional pre-trial investigation in order to correct certain procedural defects. The applicant objected and applied for release on his own recognisance. On the same day the Town Court granted the prosecutor's request and dismissed that of the applicant.

12. On 30 July 2002 the Kaliningrad Regional Court quashed the decision of 11 June 2002 in the part concerning the remittance of the case to the investigating authorities, and ordered that the Town Court should commence the trial.

13. A month later the first trial hearing was held. The applicant's lawyer unsuccessfully asked the Town Court to exclude from evidence certain items including the record of the applicant's voice identification parade.

14. On 5 September 2002 the Neman Town Court found the applicant guilty of several counts of aggravated robbery committed within a group of individuals and sentenced him to nine years' imprisonment.

15. The applicant's lawyer, Ms Z., appealed.

16. The Kaliningrad Regional Court fixed the first appeal hearing for 25 February 2003. The applicant's lawyer, Ms Z., failed to appear and the applicant asked for an adjournment. The Kaliningrad Regional Court granted his request and postponed the hearing until 11 March 2003.

17. On 27 February 2003 the applicant, assuming that Ms Z. could no longer participate, asked the Regional Court to appoint another counsel to assist him during the appeal proceedings. The Government submitted that the Regional Court had not responded to the applicant's request, acting in accordance with well-established judicial practice. According to the Government, at the material time the domestic courts erroneously considered that the Russian Code of Criminal Procedure did not require them to appoint legal-aid counsel to represent defendants in appeal proceedings.

18. On 1 April 2003 the Kaliningrad Regional Court upheld the applicant's conviction.

B. Detention in the detention unit of the Neman
town police department
1. Conditions of detention
19. On 16 August 2001 the applicant was placed in the temporary detention unit of the Neman town police department, where he remained until 24 August 2001. Between 16 August 2001 and 12 November 2002 he was detained in the unit twelve times, the shortest period of his detention lasting two days and the longest one seventeen. The aggregate length of his detention in the unit amounted to three months and thirteen days.

20. In his application form the applicant alleged that he had usually been detained in a cell measuring over nine square metres and accommodating six detainees. In his observations lodged on 1 March 2007, however, he amended his description, insisting that he had been kept in a cell measuring 6.2 square metres which housed up to 5 inmates. The remaining description of the conditions of his detention in the unit did not vary. In particular, the applicant argued that inmates had taken turns to sleep owing to the shortage of sleeping places. No bedding was provided. The cell had a window thirty centimetres wide and forty centimetres long. The cell was lit by a small bulb. In the absence of artificial ventilation in the cell it was hard to breathe owing to the thick smoke and the humidity. The cell was swarming with insects. There was no heating in winter. There was no lavatory pan or wash-bowl. Inmates used a bucket as a lavatory pan. They were allowed to clean the bucket twice a day: early in the morning and at about 6 p.m. There was no shower room in the detention unit. Inmates were provided with food once a day. In addition, in the morning they were given hot water and in the evening sweet tea. The detention unit did not have a recreation yard and inmates were therefore confined to their cells day and night.

2. Proceedings seeking compensation for damage
21. On 24 June 2003 the applicant brought an action in tort against the management of the Neman town detention unit and the Kaliningrad Regional Department of the Federal Treasury. He claimed that the conditions of his detention in the unit had been inhuman and had led to a serious deterioration of his health. He also sought leave to appear before the Town Court.

22. On 20 August 2003 the Neman Town Court ordered that the applicant should be brought to the hearing fixed for 4 September 2003, finding that "it was necessary to hear him in person as the plaintiff".

23. According to the Government, the management of the correctional colony where the applicant was detained at the material time refused to comply with the order of 20 August 2003 because domestic law did not lay down a procedure for transferring convicted prisoners to ensure their participation in civil cases. The management informed the applicant that domestic law did not oblige the authorities to ensure his presence at the hearing.

24. On 3 October 2003 the applicant received a letter from the Neman Town Court. He was informed that a hearing was listed for 24 September 2003 and that it would be held in his absence because the colony management had not brought him to the Neman Town Court.

25. On 29 December 2003 the Neman Town Court ordered a forensic medical examination of the applicant. On completion of the examination, on 12 March 2004, the applicant was served with a copy of the expert report and informed that the hearing had been fixed for 18 March 2004.

26. On 6 April 2004 the Neman Town Court partly allowed the applicant's action and awarded him 1,500 Russian roubles (RUB, approximately 43 euros) in compensation for non-pecuniary damage. The Town Court held, in so far as relevant, as follows:

"[The applicant's] argument that his right to the established norm of four square metres of personal space was violated has been amply proven.

The... witnesses confirmed that the detention unit has four cells... Cells Nos. 1 and 2 each measure 6 sq. m, cell No. 4 measures 9.8 sq. m and cell No. 3 measures 10.3 sq. m. [The applicant] was detained in cell No. 4: from 20 to 24 August 2001 6 to 7 inmates were detained there, from 3 to 13 September 2001 5 to 7 detainees; from 27 September to 14 October 2001 4 to 6 inmates; from 13 to 18 November 4 to 5 inmates; and from 22 March to 4 April 2002 seven individuals were kept [in that cell]. From May 2002 onwards [the applicant] was detained alone in cells Nos. 2 and 3. The registration log, listing the number of persons detained in the unit in specific cells, fully corroborates this account.

[The applicant's] allegation concerning insufficient lighting was confirmed. The single small window, which is situated right below the ceiling and is covered by two metal sheets with small perforated holes between which a fine metal net is suspended, gives no light. A bulb is situated outside the cell and provides insufficient lighting. The head of the temporary detention unit, Mr L., attempted to carry out renovations in 2001 and artificial lighting was installed in the cells; however, a commission arrived and found that the bulbs had been installed incorrectly, and everything was returned to its previous place...

[The applicant's] submission pertaining to the absence of artificial ventilation in the cells and the presence of high humidity levels was also proven. The small window covered with metal sheets with a metal net between them barred access to fresh air; in autumn, winter and spring it was even covered with felt cloth.

The allegation concerning the lack of a lavatory pan and water supply system in the cell was also confirmed. They are not installed in the cells; [inmates] were taken out of the cells twice in twenty-four hours, at 6.00 a.m. and 6.00 p.m.; at those times they could also wash their faces; for the rest of the day or night they used a special bucket as [a lavatory pan]. As to [the applicant] he was frequently taken to the toilet for whatever purpose was required.

[The applicant's] argument concerning the scarcity of food was not refuted. Food was provided in the detention unit once a day. In the morning and evening inmates received tea; lunch was brought in from the municipal cafeteria "Hope" in the afternoon; [lunch] consisted of two courses based on a given sum per inmate. The abovementioned witnesses did not dispute that food had been provided once a day...

The sanitary conditions in the detention unit do not comply with sanitary norms. The record of a sanitary inspection of the cells in the detention unit carried out in 2000 - 02 was destroyed. However, as is clear from [eight] letters sent by the Neman town temporary detention unit to the Head of the Neman district council and the Neman district sanitary inspector [in 1998, 2001 and 2002], the sanitary conditions did not meet personal hygiene standards. The temporary detention unit did not have a contract... for cleaning of the premises.

[The applicant's] argument about the violation of his right to a daily walk was not refuted. Inmates were not allowed outdoor exercise in the detention unit as it does not have a recreation yard.

[The applicant's] allegation pertaining to a violation of his right to bathe was fully proven. The detention unit does not have a shower room; persons detained in the temporary detention unit cannot take a shower and there is no provision for such a possibility, as individuals cannot be detained in the detention unit for more than ten days; there is no hot water [in the detention unit].

The court considers manifestly ill-founded [the applicant's] submissions concerning insufficient medical assistance. Medical assistance is provided on request to persons detained in the temporary detention unit: either an ambulance is called or inmates are taken to a doctor. The detention unit has a log recording the initial questioning, examination and provision of medical assistance to individuals detained in the Neman town temporary detention unit. [The applicant] requested medical assistance as follows: twice on 9 October 2001, a body temperature of 37.7 degrees was recorded and a doctor diagnosed him with bronchitis; on 2 February 2002 his blood