Постановление Европейского суда по правам человека от 14.01.2010 «Дело Мельников (melnikov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MELNIKOV v. RUSSIA
(Application No. 23610/03)
JUDGMENT*
(Strasbourg, 14.I.2010)
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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 Melnikov v. Russia,

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

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

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

Having deliberated in private on 15 December 2009,

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

PROCEDURE
1. The case originated in an application (No. 23610/03) 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 Sergey Anatolyevich Melnikov ("the applicant"), on 3 July 2003.

2. The applicant, who had been granted legal aid, was represented by Ms V. Bokareva, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.

3. On 12 December 2005 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).

4. On 21 September 2006 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should submit further observations on the admissibility and merits of the application.

5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1968 and is currently detained in prison No. 72/1 in the Ulyanovsk Region.

A. Criminal proceedings against the applicant
1. First and second offences
7. On 15 May 2000 the applicant, together with Mr S. and another unidentified person, broke into the premises of a private company and stole several items of property.

8. On 19 September 2000 the applicant, together with Mr S. and Mr I., committed another theft.

9. Mr S. was arrested on an unspecified date and was questioned by the investigating authority. At the interview, in the presence of counsel, he admitted to the thefts. He gave a detailed account of the events, stating that the applicant had forced the window frames in order to enter into the buildings, and described how they had then shared the proceeds from the sale of the stolen items.

10. On 6 December 2001 the investigator set up a face-to-face confrontation between S. and the applicant (see paragraph 38 below for "Relevant domestic law and practice"). According to the record, the investigator asked them if they knew each other and whether they had committed the offences. The applicant replied that he was acquainted with S. but had not committed any criminal offence with him; S. insisted that they had committed the above offences together. The record contained a note saying that they had been apprised of their right to put questions to each other; that they had waived this right and that they had no comments to add to the record. The copy of the record submitted by the Government bears S.'s and the applicant's signatures. According to the applicant, he did not sign the record.

2. Third offence
11. On 28 September 2001 the applicant, together with Mr A. and two other unidentified accomplices, robbed a warehouse belonging to a private company. During the preliminary investigation A. confessed to the robbery and named the applicant and another person as his accomplices. Allegedly, no counsel was present at this interview.

3. Trial
12. The applicant and A. were detained pending trial. S. and I. were not detained but were ordered not to leave the town.

13. In April 2002 the prosecutor signed the bill of indictment. The criminal case against the above persons was scheduled to be tried before the Vyshniy Volochek Town Court of the Tver Region. At the trial the applicant denied his involvement in the offences with which he was charged. He also argued that S. and A. had wrongly accused him, alleging that A. had admitted to the charges against him during the preliminary investigation following ill-treatment by the police.

14. On an unspecified date, S. went into hiding from justice. On 18 June 2002 the judge issued an arrest warrant in respect of S. On 19 June 2002 this order was sent to the Vyshniy Volochek police department. As is clear from an undated letter submitted by the Government, the trial judge asked the police department to speed up the enforcement of her earlier order. On 5 September 2002 the Town Court resumed the trial proceedings. On 6 September 2002 the trial court suspended the proceedings noting that S. had previously named the applicant and I. as his accomplices and that an arrest warrant had been issued against S., who went into hiding. The trial court also extended the applicant's detention. The applicant appealed against the preventive measure. On 24 October 2002 the Regional Court upheld the preventive measure but decided that the suspension of the proceedings was not justified.

15. The trial proceedings resumed. At the hearing on 3 December 2002 A. retracted the statement he had given to the investigator in relation to the third offence and argued that he had confessed and implicated the applicant under duress. At the prosecutor's request the trial court heard evidence from two officers of the Vyshniy Volochek district investigation department, who had arrested the applicant and A. Having also examined the video recordings in which A. showed the scene of the crime and pointed to the applicant as his accomplice, the trial court rejected as unfounded the allegation of confession under duress.

16. The applicant contended that he had not been afforded an opportunity to examine S., who had evaded prosecution and was in hiding. At the hearing on 4 December 2002 the prosecutor asked the trial court to allow the reading-out of S.'s pre-trial deposition. The applicant and I. objected to this request. The judge granted the request in the interests of the "objective examination of the case".

17. On 10 December 2002 the Town Court convicted the applicant of robbery and two counts of theft. The court sentenced him to eight years and six months' imprisonment. In finding the applicant guilty of two thefts, the court relied on S.'s pre-trial statement accusing the applicant, and referred to various statements by the employees of the private companies from which the thefts had been committed. Those statements only concerned the assessment of the pecuniary damage caused by the thefts. The court also listed several items of "other physical evidence" including the record of the crime scene description and the articles stolen.

18. On 20 March 2003 the Tver Regional Court upheld the judgment in substance, while reducing the applicant's prison term to eight years. The appeal court stated that the trial court had rejected the allegation of duress after a proper inquiry. Regarding S., the appeal court pointed out that the applicant had had an opportunity to confront him and challenge the credibility of his statements during the face-to-face confrontation at the pre-trial stage of the proceedings.

B. Conditions of detention in the remand centre
19. From October 2001 to April 2003 (in relation to the above proceedings) and from 24 November 2003 to 8 December 2004 (in relation to new proceedings) the applicant was kept in remand centre No. 69/1 in the town of Tver. Between April and November 2003 the applicant served his sentence in Tver colony No. 10 in relation to the above criminal case.

1. The applicant's account
20. In his letter of 1 May 2004 the applicant described his conditions of detention in the remand centre since 24 November 2003 as follows.

On his arrival the applicant was put in cell No. 19. The cell measured approximately thirty square metres and was designed to accommodate twelve inmates. However, at that time the applicant shared the cell with more than thirty inmates. In 2004 the number of inmates in his cell exceeded the limit, varying between twenty and forty. In these circumstances the applicant had to share a bed with another inmate.

The applicant was confined in one cell with a HIV-positive inmate and others suffering from tuberculosis and hepatitis B and C.

The concrete floor in the cell was always wet because the water tap was broken. Besides the fact that water ran freely on the floor, the accumulation of humidity was conducive to the spread of infectious diseases among the cell inmates. The cell was infested with bugs, cockroaches and lice and was poorly ventilated.

From 23 December 2003 until 6 January 2004 the applicant was not allowed to shower.

No radio receiver, TV set or light reading such as crossword puzzles for entertainment were allowed by the authorities of the detention facility.

In late 2003 and 2004 the applicant was allowed to have meetings with his family, during which he could talk to them through a glass partition with the aid of a telephone.

2. The Government's account
21. From 24 November 2003 to 22 October 2004 the applicant was kept in cell No. 19 together with up to twenty-one detainees, the average cell population being fourteen detainees. From 22 October to 15 November 2004 the applicant was in cell No. 20, which housed up to eighteen persons, the average cell population being thirteen detainees. Both cells measured twenty-four square metres and had twelve beds. No information was submitted regarding the period from 15 November to 8 December 2004.

22. Each cell was equipped with a table, two benches and a toilet. Each cell had both natural and mandatory artificial ventilation, as well as ventilator windows. The necessary disinfection or sanitary measures were taken on a regular basis.

23. The applicant was provided with an individual bed and bedding, including a mattress, a pillow, a pillowslip, a cover, two bed sheets and a towel. Once a week he was allowed to have a fifteen-minute shower.

3. The applicant's complaints about his
conditions of detention
24. According to the applicant, in January 2004 he complained to the Moskovskiy District Court of Tver about the conditions of his detention in remand centre No. 69/1. On an unspecified date the President of the District Court sent a letter to the applicant stating that no complaint from him had been received by that court. As he was unsatisfied with the reply of the District Court, the applicant wrote to the Tver Regional Court. No reply was received.

25. The applicant complained about the conditions of his detention in the remand centre to the Office of the Russian President. In reply to this complaint he received a letter dated 27 August 2004 from the prosecutor's office of the Tver Region, which confirmed that the population of the remand centre had exceeded the limit (twenty-one inmates compared with a limit of twelve persons) at the relevant time. In the same letter the prosecutor's office rejected the applicant's complaint concerning the allegedly unlawful limitations on visits from his family members, including extended visits from his wife.

C. Detention in Tver colony No. 1
26. Before July 2005 the applicant was detained in Tver colony No. 10. In July 2005 he was transferred to Tver colony No. 1. In both facilities he was reprimanded on several occasions for breaching the prison discipline rules. He was put into a punishment cell for five and later for fifteen days.

27. On 28 November 2005 the disciplinary committee decided that his prison regime should be changed to a strict regime with effect from 7 December 2005 on account of his repeated breaches of prison discipline. Hence, from late October 2005 until September 2006 he was placed in a punishment cell at least twenty-five times for periods of between six days and two months (on one occasion in 2006). In the meantime, other disciplinary measures (such as reprimands or an "educational talk") were imposed on him for similar breaches.

D. The applicant's correspondence with the Court
28. At the applicant's request, on 2 May 2006 the Court decided under Rule 36 § 4 (a) of the Rules of Court to give Ms Bokareva, then a legal consultant at the International Protection Centre in Moscow, leave to represent the applicant in the proceedings before the Court. She was invited to submit by 6 July 2006 at the latest any written observations on behalf of the applicant in reply to the Government's observations, together with any claims for just satisfaction. She was also invited to indicate by the same date the applicant's position regarding a friendly settlement of the case, and any proposals he might wish to make. The above time-limit was extended to 6 August 2006.

29. In addition, in response to a request for legal aid by Ms Bokareva on behalf of the applicant, the latter was invited to complete, by 15 June 2006, the form for the declaration of means provided for in Rule 93 § 1 of the Rules of Court. This time-limit was extended to 15 July 2006.

30. According to the applicant, on 31 May 2006 in the presence of three other prisoners the applicant gave guard N. of Tver colony No. 1 a package of documents (fifty-seven single or double-spaced pages) containing his observations in reply to the Government's observations on his application before the Court. He asked that it be dispatched to his representative, Ms Bokareva. N. then informed him that he had transmitted the package to officer K. Later, the applicant learned from unit officer Sh. that the latter had seen the package. The applicant contended that he had handed over his letter to guard N. in the presence of three cellmates. According to the applicant, it was never dispatched.

31. The Government produced a copy of Mr N.'s report stating that no documents had been handed over to him while he was on duty from 30 to 31 May 2006. Similarly, Mr K. and Mr Sh. also testified that Mr N. had not been in possession of any documents from the applicant on 31 May 2006. The prison administrative officer