Постановление Европейского суда по правам человека от 20.05.2010 «Дело Владимир Козлов (vladimir kozlov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF VLADIMIR KOZLOV v. RUSSIA
(Application No. 21503/04)
JUDGMENT*
(Strasbourg, 20.V.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 Kozlov 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,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 29 April 2010,

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

PROCEDURE
1. The case originated in an application (No. 21503/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Vladimir Nikolayevich Kozlov ("the applicant"), on 10 March 2004.

2. The applicant was represented by Ms Y. Liptser and Mr R. Karpinskiy, lawyers practising in Moscow. The Russian Government ("the Government") were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been detained in inhuman and degrading conditions in remand prison No. IZ-77/3 in Moscow.

4. On 27 June 2008 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 1962 and lives in Moscow.

A. Criminal proceedings against the applicant
6. On 11 September 1996 Mr Z., the applicant's business partner, was killed.

7. In 1997 Mr Zh. and 17 other persons were charged as an organised group with numerous counts of robbery and murder, including the murder of Mr Z. and the planning of the murder of Ms A., Mr Z.'s girlfriend.

8. On 9 April 1997 the applicant was arrested. He was charged with aiding and abetting the murder of Mr Z. and the planning of the murder of Ms A. The applicant remained in custody pending investigation and trial. His case was joined to the case of Mr Zh. and the others. The applicant's numerous requests to disjoin the cases were rejected both by the prosecutor and the court.

9. On 24 March 1999 the preliminary investigation was completed and the case file was transferred to the Moscow City Court for consideration.

10. On 6 April 1999 the Moscow City Court scheduled the trial for 20 April 1999.

11. The trial lasted from 6 April 1999 until 18 July 2001. The court held 82 hearings. On 36 occasions the court adjourned the proceedings on account of the illness of some of the defendants, a quarantine in place in their detention facilities or their lawyers' failure to appear. The proceedings were interrupted twice on account of a security threat in the courthouse. On six occasions the proceedings were adjourned on account of clashes in the judge's schedule, his illness or the authorities' failure to transport the defendants to the court house.

12. On 18 July 2001 the Moscow City Court found the applicant guilty as charged and sentenced him to eleven years' imprisonment.

13. From 20 July 2001 until 15 October 2002 the defendants studied six volumes of the minutes of the court hearings.

14. On 10 September 2003 the Supreme Court of the Russian Federation heard the case on appeal. The court upheld the applicant's conviction in substance and reduced his sentence to ten years' imprisonment.

B. Conditions of the applicant's pre-trial detention
1. Lefortovo remand prison
15. From 26 November 1997 to 17 August 2001 the applicant was detained in Lefortovo remand prison. He was held in a cell measuring 8 sq. m and had to share it with one or two other inmates. There was no hot water or shower facility in the cell. A partition separating the toilet from the living area of the cell was installed only in 1999.

2. Remand prison No. 77/3
16. On 17 August 2001 the applicant was transferred to remand prison No. IZ-77/3 where he was detained until October 2003.

(a) Description provided by the applicant
17. According to the applicant, the cell where he was detained measured 33 square metres and was equipped with twenty-four bunk beds. The minimum number of inmates detained with the applicant at any one time was twenty-three. In August 2001 the cell housed forty inmates; that number had increased to forty-seven by the end of the year. The inmates took turns to sleep due to the lack of beds. By the beginning of 2003 twenty-three inmates were kept in the cell. The cell did not have any ventilation. It was stiflingly hot in the summer and very cold in the winter. Most of the inmates smoked and the applicant, a non-smoker, was exposed the tobacco smoke of others. The cell was infested with cockroaches and lice. Disinfection of the cell was performed once every three months and was to no avail. The television and the light were constantly on. Window panes were installed only in late 2002. The toilet was elevated from the floor by 0.5 metres. It was separated from the living area of the cell by a partition measuring one metre in height. The person using the toilet could be seen by both the inmates and the guards watching the inmates through the peep-hole in the door. The dinner table was some four metres away from the toilet. On several occasions HIV-infected inmates were placed in the cell. The applicant was allowed to take a 20-minute shower once a week. On one occasion between December 2001 and January 2002 the applicant did not have the opportunity to take a shower for three weeks. He was allowed to be outside for approximately one hour per day. The meals were of poor quality.

(b) Description provided by the Government
18. According to the Government, at all times the applicant was afforded at least 4 sq. m of living space. In particular, the Government provided the following data concerning the cell measurements:

Cell number Cell surface area
404 19.2 sq. m
410 32.4 sq. m
406 32.4 sq. m
407 32.4 sq. m
507 32.7 sq. m
519 32.7 sq. m
19. Each cell had a window measuring 0.89 by 0.94 metres. The windows were equipped with vents which could be kept open to let additional fresh air in. The ventilation system functioned properly. Upon arrival at the remand prison, the applicant was provided with two bed sheets, a mattress, a blanket, a pillow, a pillow case, a towel, and cutlery. Each cell had a water heater and a potable water tank. The remand prison was equipped with a central water supply, sewage system, ventilation and lighting. In the day the lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to maintain lighting for surveillance and safety reasons. The inmates were allowed to watch TV between 6 am and 10 pm. The use of the TV during the night-time was prohibited. The average temperature in the cells did not fall below + 18 °C during the winter and did not exceed + 20 °C during the summer. Window panes were installed for autumn and winter.

20. Each cell had a toilet, a sink, a table and benches. The toilet was separated from the living area of the cell by a one-metre-high partition and a screen to ensure the privacy of the person using the toilet. The applicant could take a shower once a week for at least fifteen minutes.

3. Confinement at the courthouse
21. During the time of the trial, that is from 6 April 1999 to 18 July 2001, on the days of the court hearings the applicant was held in custody at the courthouse.

(a) Description provided by the applicant
22. The cells at the courthouse measured 2 sq. m. Each time the applicant had to share the cell with two or three other persons. The ventilation system did not function properly and the cells were very hot in the summer. The applicant was not provided with food at all.

(b) Description provided by the Government
23. At the courthouse the applicant was detained in a cell measuring 1.95 by 1 metres. There was a bench in the cell. The cell was equipped with ventilation, lighting, and central heating. The metal door had a peephole. The average temperature in the cell was between 18 and 20 °C. The applicant was allowed to use the bathroom upon arrival and before departure or before the start of the court hearing, if necessary. He was provided with food and hot water.

C. Mass media comment about the applicant's case
24. According to the applicant, numerous newspapers and television channels covered his arrest and the circumstances of Z.'s murder before the trial was over.

25. A documentary made by Mr D. about the case was shown at least six times by one of the nationwide TV channels. The film featured footage of the applicant and Z. aboard a sea cruiser.

26. On 7 March 2002 the prosecutor's office dismissed the applicant's request for criminal proceedings to be instituted against Mr D.

THE LAW
I. Alleged violation of Article 3 of the Convention
27. The applicant complained that his detention pending investigation and trial in remand prison No. IZ-77/3 and his confinement at the courthouse during the trial had been in contravention of Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Admissibility
1. Submissions by the parties
28. The Government noted that the applicant had failed to bring his grievances to the attention of a competent domestic authority and considered that his complaint should be rejected for failure to comply with the requirements of Article 35 § 1 of the Convention. In particular, they submitted that it had been open to the applicant to bring his grievances to the attention of the prosecutor. They cited the following examples from the domestic practice in support of their position. In response to a Mr N.'s complaint about the conditions of his detention the Novosibirsk prosecutor's office conducted an inquiry which confirmed N.'s allegations that the food rations had been insufficient and the water supply had been irregular. As a result, the prison administration renovated the detention facility and purchased medical supplies. In the Vladimir Region, a special section for detention of inmates diagnosed with tuberculosis was established following an NGO's complaint on behalf of a Mr B. In the Khabarovsk Region the administration of the prison where Mssrs Sh. and Z. were detained renovated the shower and laundry rooms, upgraded the ventilation system in the disciplinary block and set up an area for medical consultations. Alternatively, in the Government's opinion, the applicant could have brought a civil action for damages resulting from the conditions of his detention. The Government cited three cases in this connection. The Yoshkar-Ola Town Court in the Mariy El Republic granted a Mr S.'s action for compensation for non-pecuniary damage resulting from a violation of his rights set forth in Article 3 of the Convention on account of the appalling conditions of his detention in a remand prison. A Mr D. had been awarded 25,000 Russian roubles (RUB) in compensation for non-pecuniary damage arising from the unsatisfactory conditions of his pre-trial detention. On 23 April 2004 the Zheleznodorozhniy District Court of Oryol found that a Mr R.'s pre-trial detention had been unlawful that he had not received food for five days of his detention. The court awarded Mr R. RUB 30,000.

29. The applicant contested that argument. He submitted that the information provided by the Government was insufficient to substantiate their allegations that an effective remedy in fact existed in respect of the complaint about the conditions of his detention in 2001 - 2003.

2. The Court's assessment
30. In so far as the applicant's complaint concerns his confinement at the courthouse during the trial which ended on 18 July 2001, the Court reiterates that it may only deal with a matter within a period of six months from the date on which the final decision was taken or the event occurred. The applicant lodged his application on 10 March 2004. It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

31. As regards the Government's objection concerning the applicant's alleged failure to exhaust domestic remedies in respect of his complaint about the conditions of his detention in remand prison No. IZ-77/3, the Court observes that in the case of Benediktov, in comparable circumstances, it found that the Government had failed to demonstrate what redress could have been afforded to the applicant by a prosecutor or a court, taking into account that the problems arising from the conditions of the applicant's detention had apparently been of a structural nature and had not concerned the applicant's personal situation alone (see Benediktov v. Russia No. 106/02, §§ 29 - 30, 10 May 2007).

32. The Court also notes that the Government have already raised the issue of non-exhaustion, referring to the same domestic case-law in a number of Russian cases concerning conditions of detention in Russia. The Court has examined and dismissed them, finding the said remedies ineffective (see, for example, Aleksandr Makarov v. Russia, No. 15217/07, §§ 76 - 91, 12 March 2009). The Court discerns nothing in the Government's submissions which would persuade it to depart from its earlier finding. It follows that the applicant was not required to exhaust the domestic remedies, indicated by the Government, and the Government's objection must be dismissed.

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

B. Merits
1. Submissions by the parties
34. Relying on the certificates issued by the remand prison administration in August and September