Особенности судебного перевода, посредством выявления особенностей перевода решений Европейского суда по правам человека

52. On 30 December 2003 the applicant's lawyers appealed against this decision. The appeal was received by the Moscow City Court from the first- instance court on 14 January 2004.

53. On 15 January 2004 the Moscow City Court upheld it. The hearing in the Moscow City Court took place in public in the presence of the applicant's lawyers. The applicant was absent from that hearing. From that moment on the detention hearings in the applicant's case were held in public. In the decision of 15 January 2004 the Moscow City Court held, inter alia, that the lower court had had evidence that the applicant had tried to exert pressure on witnesses.

5. Third detention order (19 March 2004)

54. On an unspecified date the prosecution requested the Basmanniy District Court to extend the applicant's detention again because the applicant needed more time to study the prosecution files. In support of his request the prosecutor mentioned in his submissions the “seizure from one of the defendants of the written notes containing the instruction of Khodorkovskiy to put pressure on the witnesses for the prosecution”.

55. On 19 March 2004 the court held a hearing. The defence lawyers complained that they had been unable to see the applicant in private to take instructions as the applicant had only been informed that day of the hearing

and had had insufficient time to review the new case materials submitted by the prosecutor. They themselves had only been informed of the hearing on the previous day. They asked for an adjournment of three days. They also submitted to the court an expert handwriting analysis report showing that the document seized from Ms A had been written by her and not by the applicant. The defence claimed, further, that the applicant would not abscond. In support of that claim, the defence referred to one of the co- accused, Mr K., who had signed a written undertaking not to leave his city of residence and had not absconded. The defence indicated that the applicant's passports had been handed over to the prosecution and that his family were once again offering to put up bail for him. In the opinion of the defence it was absurd to suggest that the applicant would continue with criminal activity, since he was not charged with crimes of violence but with economic crimes: it would be impossible for him to commit such crimes if bailed on condition of house arrest. The prosecution objected to the applicant being granted bail on the condition of house arrest.

56. After having examined the materials of the case file and having heard the parties, the court extended the detention until 25 May 2004 essentially for the same reasons as before. In support of its conclusions, the court referred to the fact that some of the applicant's co-defendants had fled from Russia, that the applicant had several foreign passports, that he owned a considerable amount of shares in a foreign company, and that he had tried to exert pressure on the prosecution witnesses. The court also referred to the fact that some of the witnesses were dependent on the applicant. In the detention order the court did not, however, refer to the risk that, if released, the applicant would engage in criminal activities. The District Court also held that the detention could not be replaced by personal sureties because the court was not entitled to take such a decision under Article 109 of the CCrP.

57. The Government maintained that the applicant's appeals against the detention order of 19 March 2004 were received by the District Court on 25 March (appeal by Mr Padva) and 2 April 2004 (appeal by Ms Moskalenko). On 27 April 2004 the materials of the case were forwarded by the District Court to the Moscow City Court. The parties were informed of the date and venue of the appeal court hearing. On 12 May the Moscow City Court upheld the decision of 19 March 2004.

6. Detention orders of 20 May and 8 June 2004; application for release of 16 June 2004

58. On 14 May 2004 the prosecution submitted the case to the Meshchanskiy District Court for trial.

59. On 20 May 2004 the Meshchanskiy District Court decided to hold a preliminary hearing on 28 May and ordered that the applicant should stay in prison. The decision was taken in camera and without the attendance of either the applicant or his lawyers or the prosecution. No reasons for the continued detention of the applicant were given and the period of detention was not specified.

60. On 26 May 2004 one of the applicant's lawyers, Ms Moskalenko, lodged an appeal against the decision of 20 May 2004. She complained, inter alia, that the detention hearing had been held without the applicant or his lawyer, and that the decision extending the detention did not contain any reasons. After having obtained a reply from the prosecution, the Meshchanskiy District Court forwarded the appeal to the Moscow City Court. The applicant's appeal against the decision of 20 May 2004 was dismissed by the Moscow City Court on 21 June 2004. It appears that neither the applicant nor his lawyers were present at the hearing of 21 June 2004. According to the Government, the summons was sent to six lawyers representing the applicant; however, the summons was not sent to Ms Moskalenko, as her power of attorney did not entitle her to represent the applicant before the appeal court. The Government did not produce copies of the summons. The Moscow City Court found that the decision of 20 May 2004 had been taken by a competent court in compliance with the relevant legislation. It did not specify the reasons for extending the applicant's detention.

61. Preliminary hearings in the trial court took place on 28 May and 8 June 2004. On the latter date the court decided to open the trial on 16 June 2004 and to join the cases of the applicant and Mr Lebedev. It also ordered that the applicant should stay in prison pending trial. No reason for that decision was given and the court did not specify the period of detention. Ms Moskalenko appealed against that decision, claiming, inter alia, that the decision of 8 June 2004 to detain the applicant had not been reasoned. On 29 July 2004 the detention order of 8 June 2004 was upheld by the Moscow City Court. The City Court in its decision indicated that it had reviewed the materials of the case file, examined the submissions of the parties, and concluded that the detention order by the first-instance had not violated the criminal procedure law. The City Court also indicated that, taking into consideration the materials available in the case file, the first-instance court had not found any grounds to reverse or modify the measure of restraint in the form of detention pending trial. According to the applicant Ms Moskalenko was unable to participate in the hearing on medical grounds. However, the applicant, several of his lawyers and the lawyers representing Mr Lebedev were present at that hearing.

62. On 16 June 2004, when the trial started, the applicant's lawyer requested the trial court to release the applicant because he was detained unlawfully. The court dismissed that request. In its ruling the court established that during the investigation the detention had been ordered and extended by the Basmanniy District Court. The Meshchanskiy District Court declared itself incompetent to reassess those detention orders. The Meshchanskiy District Court further noted that on 20 May 2004, following receipt of the case file from the prosecution, it had maintained the measure of restraint imposed earlier. That decision was later confirmed on 8 June 2004. Those decisions were not quashed, and only an appeal court could examine the lawfulness of previously imposed detention orders. The court concluded that it did not detect any “breaches of the existing legislation that would prevent the applicant's detention”.

63. Ms Moskalenko appealed against that ruling, but on 29 July 2004 the Moscow City Court upheld both the above decision and the earlier decision of the same court of 8 June 2004 (cf. above).

7. Detention orders of 1 November 2004, 28 January 2005, and 24 March 2005

64. On an unspecified date the prosecution requested the court to extend the applicant's detention because the trial was continuing.

65. On 1 November 2004 the Meshchanskiy District Court held a public hearing, in the presence of the applicant and his lawyers. During the hearing the applicant's lawyers asked the court to consider alternative measures of restraint. Having examined the parties' submissions the District Court extended the applicant's detention until 14 February 2005, essentially for the same reasons that the Basmanniy Court had given earlier, at the pre-trial stage (without, however, mentioning the applicant's property abroad). The detention order indicated that there was a risk that the applicant would try to put pressure on witnesses, and that the detention was the only appropriate option.

66. On 9 November 2004 the applicant appealed against the extension order. The appeal was rejected by the Moscow City Court on 1 December 2004.

67. On 28 January 2005 the Meshchanskiy District Court extended the applicant's detention until 14 May 2005, repeating the reasons given in the earlier decisions in that regard. The court repeated in particular that the applicant had tried to influence witnesses in the case, that many witnesses worked in companies affiliated with him, that the applicant had international connections, and that other suspects had fled Russia. The applicant's lawyers during the hearing asked the court to consider alternative preventive measures. The applicant's appeal against that decision was rejected by the Moscow City Court on 17 February 2005.

68. On 24 March 2005 the court extended the applicant's pre-trial detention until 14 July 2005, again with essentially the same reasoning. In the detention order the District Court noted that by that time both parties had completed presenting their evidence and the proceedings were reaching the stage of oral pleadings (preniya), which would then be followed by the closing address of the accused persons and the court's deliberations. However, it was still possible for the court to re-open the judicial examination of evidence, if need be. Further, the court assumed that the pleadings, addresses and deliberations could take a long time, given the complexity of the case and the number of parties involved. The appeal by the applicant against this decision was also unsuccessful, as the Moscow City Court rejected it on 21 April 2005.

69. On 31 May 2005 the applicant was found guilty of the charges brought against him and sentenced to nine years' imprisonment. On 22 September 2005 the Moscow City Court upheld the judgment in the main, excluded several charges and reduced the sentence to eight years. Some time afterwards the applicant was transferred to a correctional colony in the Chita Region, where he is currently serving his sentence.

D. Conditions of detention; contacts with the applicant's lawyers

1. Conditions in remand prisons nos. 99/1 and 77/1

70. From 25 until 27 October 2003 the applicant was detained at remand prison no. 77/1 in Moscow, known as “Matrosskaya Tishina”. From 27 October 2003 until 8 August 2005 the applicant was detained at remand prison no. 99/1 in Moscow, which is a special-purpose block of the “Matrosskaya Tishina”. Thereafter, and until his transferral to the penal colony the applicant was again detained at remand centre 77/1. On 9 October 2005 the applicant was sent to serve his sentence at penal colony FGU IK-10 in the town of Krasnokamensk, Chita Region.

(a) The applicant's account

71. The applicant indicated that from 27 October 2003 to 18 June 2005 he had been held in cells 501, 503 and 506. In those cells the partition dividing the toilet from the rest of the cell was no more than 85 cm high. The applicant insisted that the partition was not high enough to ensure his privacy when using the toilet. He insisted that the toilet had not been separated or soundproofed and allowed inmates to see and hear everything happening in the toilet. The smell from the toilet pervaded the cell. The applicant had to eat his meals in the cell in such conditions. The prison authorities did not supply curtains to separate the toilet from the rest of the cell. He noted that no such curtain (or curtain mark) was visible in the photographs of cells 501, 503 and 506 provided by the Government. The applicant's bed was very close to the lavatory. It was only on 18 June 2005, after the end of the trial and the applicant's conviction, that he was transferred to the refurbished cell no. 610, where the partition was 175 cm high.

72. According to the applicant, his cell in remand centre no. 99/1 housed four or five persons. Thus, each detainee had at the most four square metres

of space in the cell, which contained beds, a worktable that also served as a dining table and the toilet bowl and washbasin. The applicant was incarcerated in such a cell for 23 hours a day for almost two years. At remand centre 77/1 the applicant shared a cell with about fifteen people.

73. In summer the unventilated cells of the remand centres became too hot - over 30 degrees - and in winter too cold - about 18 degrees. The effect of the lack of ventilation was particularly acute on the applicant because he was a non-smoker and was constantly forced to inhale tobacco smoke. On many days the applicant was unable to have his one-hour walk as he had to attend court. Moreover the walking areas were totally enclosed roofed yards at the top of the remand centre. The applicant therefore never had any access to fresh air on these walks. The dimensions of some of the walking areas were very small: between twelve and sixteen square metres. Additionally, the applicant was only permitted weekly washing facilities.

74. The applicant further submitted that the authorities had consistently denied independent observers the opportunity to inspect the conditions of his detention. Thus, the authorities had refused to grant permission to the PACE Special Rapporteur to visit the applicant; the head of the remand centre had refused a Russian member of Parliament access to visit the applicant and inspect the conditions of his detention. On 22 January 2004 a Russian Member of Parliament, Mr Stolyarov, sent a request to the then Head of IZ-99/1 asking to inspect the “incarceration conditions of Mikhail Borisovich Khodorkovskiy”. Under Russian law members of parliament have an unfettered right to visit remand prisons and penal colonies. However, when Mr Stolyarov visited the remand centre on 30 January 2004 the head of the remand prison unlawfully refused him access to the applicant. Further, the applicant was denied access to his doctors in connection with his gastric problems.

75. On 9 November 2004 and 7 February 2005, in his appeals to the Moscow City Court against the decisions of 1 November 2004 and 28 January 2005 extending his detention pending trial, the applicant described the poor conditions in which he was detained. On 1 December 2004 and 17 February 2005 the Moscow City Court dismissed the applicant's complaints. Those decisions did not contain any analysis of the applicant's allegations about the conditions of his detention. The applicant also described the conditions of his detention in his cassation appeal against the judgment of the Meshchanskiy District Court of 31 May 2005.

(b) The Government's account

76. According to the Government, in remand centre IZ-77/1 the applicant was detained in cells nos. 276 and 144. Cell no. 276, where the applicant was placed for three days after his arrival, measured 20.44 square metres. The applicant was detained there with four other people. Cellno. 144 measured 52.7 square metres. The applicant was detained there between 8 August 2005 and 9 October 2005 with thirteen other people.

77. The cells in remand centre no. 99/1 were also not overcrowded. In remand centre no. 99/1 the applicant had an individual sleeping place and 4.4-5.9 square metres of personal space in each cell where he was detained. They produced a report indicating the surface area and number of sleeping places in each cell in which the applicant was detained. According to the information provided by the Government, an average cell measured approximately 3 metres by 5 metres. The applicant was detained in cells nos. 501, 503 and 506. On 18 June 2005 the applicant was transferred to newly refurbished cell no. 610.

78. Each cell had windows, electric lighting, hot and cold water, a lavatory and a toilet pan. Although the electric light was on during the night, it was of a lesser intensity than the daytime lighting. The toilet pan was separated from the rest of the cell by a partition measuring 175 cm (cell no. 610) and 85 cm (cells nos. 501, 503, 506), so that the person using the toilet pan was not seen by his cellmates or from the spy-hole in the door. The Government submitted photos of the cells in which the applicant had been detained and of the toilet cubicles. In their post-admissibility submissions the Government indicated that in all cells the partition was at least one metre high.

79. All the cells were equipped with a TV-set, a fridge, an electric kettle and a ventilator, in addition to the standard furniture (bunk beds, stools, table, food locker, coat-hanger, garbage bin, and washing bowls). The cells were properly heated, and ventilated through open windows and through a forced ventilation system, which was always in order. The cells were inspected on the daily basis by the prison staff, who checked that all systems functioned properly. The applicant did not make any complaints about temperature or ventilation in the cell where he was detained.

80. The applicant was given bed linen and cutlery and was allowed to have his own bed linen.

81. The applicant could have a one-hour daily walk in one of the ten courtyards equipped with a metal shelter and benches. When he had arrived at the remand prison late after the court hearings, he had been unable to take exercise. According to the information provided by the Government, remand centre no. 99/1 had ten walking yards (the smallest measured

15.9 square metres, the largest 36.6 square metres; the average area was about 29 square metres). Each walking yard was equipped with a roof and benches. The Government also produced several reports showing the number of people from each cell who could have a walk outside; these reports concerned about two dozen cells and were dated 18-19 November 2003, 28-29 April, and 30-31 July, 28-29 September 2004 and 6-7 August 2005. The Government also produced documents on the quality and quantity of food distributed to detainees. They submitted, further, a copy ofthe applicant's medical history showing that the applicant, while in detention, had not had major health problems, although there had been some medical incidents and the applicant had on many occasions been examined by doctors.

82. The applicant could also take a shower for fifteen minutes once a week, and, for additional payment, take a shower more often, go to a fitness room, wash his underwear and bed linen, and receive other extra services. Thus, he visited the fitness room of the prison 59 times. In the fitness room he was also able to take a shower. The last visit to the fitness centre was dated 23 July 2005.

83. Three times a day he was given hot food of an appropriate standard. On court days the applicant received dry food or, alternatively, was allowed to take food sent to him by his relatives.

84. The Government indicated that while in the remand centres the applicant had been examined by a doctor with the use of special medical equipment. In particular, doctors examined him in order to define whether further examination of the internal organs was necessary.

85. In support of their submissions the Government also submitted reports from prison officials, dated 2006, which certified the above information on the sanitary conditions in the cells where the applicant had been detained. The Government also submitted a copy of the applicant's personal cash account, which showed that he had been receiving money from his relatives and was able to spend it on, among other things, food, extra visits to the shower room or the sports room or renting additional equipment.

2. Conditions in the courtroom

During the trial the applicant sat on a wooden bench in a small cage in the courtroom. He had to instruct his lawyers through the bars, while a convoy officer was always present next to him. Whenever the applicant left the cage, he was handcuffed to convoy officers. According to the applicant, on court days he received little food, no exercise, and no fresh air. The Government submitted that on court days the applicant had been unable to have a walk because he had regularly arrived at the remand centre late, when all the walking yards had been closed. The applicant was always provided with hot food, and, depending on the time of his departure from the remand centre, with a travel ration.

E. Reaction of international organisations, NGOs and political figures to the criminal prosecution of the applicant

The applicant's case attracted considerable public attention in Russia and abroad. In the course of the trial and afterwards many prominent public figures and influential organisations expressed their doubts as to the fairnessof the criminal proceedings against the applicant and his colleagues. The applicant submitted documents to that effect.

Thus, according to the applicant, his allegations were endorsed by the comments of leading Russian politicians and foreign governments; the findings of the Special Rapporteur of the Parliamentary Assembly of the Council of Europe; the Parliamentary Assembly, which concluded that the circumstances of the applicant's case went “beyond the mere pursuit of criminal justice, and include elements such as the weakening of an outspoken political opponent, the intimidation of other wealthy individuals and the regaining of control of strategic economic assets” (Resolution 1418 (2005), adopted on 25 January 2005); the judgment of the London Extradition Court in the case of Chernysheva and Maruev v. Russian Federation, in which the judge concluded that “it is more likely than not that the prosecution of Mr Khodorkovskiy is politically motivated” and that “President Putin had directed that ... Mr Khodorkovskiy should be prosecuted”; the granting on 6 April 2005 by the United Kingdom authorities of political asylum to other individuals closely linked to the applicant who had also been granted refugee status. The applicant also referred to the decisions of the Nicosia District Court (Cyprus) of 10 April 2008 in an extradition case concerning former Yukos managers, and to some other European jurisdictions. The applicant considered that in those proceedings the courts had established that his prosecution and that of his colleagues was politically motivated.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Pre-trial detention

86. The Code of Criminal Procedure of 2001 provides:

Article 101. Rulings on application of a measure of restraint

“1. Having chosen a measure of restraint ... the court ... renders a ruling which should specify the charges against the suspect or accused persons, and the grounds for applying the measure of restraint.”

Article 108. Pre-trial detention

“1. Pre-trial detention shall be applied as a measure of restraint by a court only where it is impossible to apply a different, less severe precautionary measure ... When the court decides to apply pre-trial detention as a measure of restraint it should specify in its ruling the specific facts which lead the court to reach such a decision. ...

3. Where it is necessary to apply detention as a measure of restraint ... the investigating officer shall apply to the court accordingly...

4. [The request] shall be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and defence counsel, if one has been appointed to act in the proceedings. [The request shall be examined] at the place of the preliminary investigation, or of the detention, within eight hours of receipt of the [request] by the court.... The non-justified absence of parties who were notified about the time of the hearing in good time shall not prevent [the court] from considering the request [for detention], other than in cases of absence of the accused person. ...

7. Having examined the request [for detention], the judge shall take one of the following decisions:

(1) apply pre-trial detention as a measure of restraint in respect of the accused;

(2) dismiss the request [for detention];

(3) adjourn the examination of the request for up to 72 hours so that the requesting party can produce additional evidence in support of the request. ...

9. Repeated requests to extend detention of the same person in the same criminal case after the judge has given a decision refusing to apply this measure of restraint shall be possible only if new circumstances arise which constitute grounds for taking the person into custody.”

Article 109. Time-limits for pre-trial detention

“1. A period of detention during the investigation of criminal offence shall not last longer than two months.

2. If it is impossible to complete the preliminary investigation within two months and there are no grounds for modifying or lifting the preventive measure, this time- limit may be extended by up to six months by a judge of a district or military garrison court of the relevant level in accordance with the procedure provided for in Article 108 of the present Code. This period may be further extended up to 12 months in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case, and provided that there are grounds for application of this preventive measure, by a judge of the same court upon an application by the investigator, filed with the consent of a prosecutor...

3. The period of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge] on an application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy.

4. Further extension of the time-limit shall not be allowed. ...

13. Examination of [the prosecution's] request for extension of the detention is not allowed, except where the suspect or accused is undergoing in-hospital psychiatric examination or in other circumstances which exclude his participation in the court hearing, which should be supported by appropriate documents. In any event the participation of the defendant's lawyer is mandatory.”

Article 110. Lifting or modifying a preventive measure

“1. A preventive measure shall be lifted when it ceases to be necessary or replaced by a stricter or a more lenient one if the grounds for application of a preventive measure ... change.

2. A preventive measure shall be lifted or modified by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision.

3. A preventive measure applied at the pre-trial stage by the prosecutor, the investigator or the person carrying out the inquiry, on his written instructions, may be lifted or modified only with the prosecutor's approval.”

Article 113. Enforced attendance

“1. If a witness fails, without reasonable excuse, to attend court when summoned ... he or she may be brought forcibly.

2. Enforced attendance ... shall consist of the person being brought by force before the inquirer, the investigator or the public prosecutor, or the court.

3. If there are reasons preventing their appearance in response to the summons at the designated time, the persons mentioned in paragraph 1 of this Article shall immediately notify the authority by which they have been summoned accordingly.

4. A person who is to be forcibly brought before the relevant authority shall be notified accordingly by an order of the person carrying out the inquiry, the investigator, the public prosecutor or the judge, or a ruling of the court, and this notification shall be confirmed by his signature on the order or ruling.

5. Enforced attendance cannot be carried out at night-time, except in circumstances when the matter cannot wait.

6. Underage persons who have not reached fourteen years of age, pregnant women and sick persons who cannot leave their place of residence on account of poor health, which shall be certified by a doctor, shall not be forced to attend. ...”

Article 123. Right of appeal

“Actions (omissions) and decisions of the agency conducting the inquiry, the person conducting the inquiry, the investigator, the prosecutor or the court may be appealed against in accordance with the procedure set forth in the present Code by participants in the criminal proceedings or other persons, to the extent that the procedural actions carried out and procedural decisions taken affect their interests.”

Article 188. Procedure for issuing a summons for questioning

“... 3. A person who is summoned for questioning shall attend at the appointed time or notify the investigator in advance of any reason preventing him from attending. If aperson summoned for questioning fails to appear without any valid reasons he may be brought forcibly ...”

Article 227. Judges' powers in respect of a criminal case submitted for trial

“1. When a criminal case is submitted [to the court], the judge shall decide either

(i) to forward the case to an [appropriate] jurisdiction; or

(ii) to hold a preliminary hearing; or

(iii) to hold a hearing.

2. The judge's decision shall take the form of an order...

3. The decision shall be taken within 30 days of submission of the case to the court. If the accused is detained, the judge shall take the decision within 14 days of submission of the case to the court...”

Article 228. Points to be ascertained in connection with a criminal case submitted for trial “Where a criminal case is submitted for trial, the judge must ascertain the following points in respect of each accused:

(i) whether the court has jurisdiction to deal with the case;

(ii) whether copies of the indictment have been served;

(iii) whether the measure of restraint should be lifted or modified;

(iv) whether any applications filed should be granted ...”

Article 231. Setting the case down for trial

“1. When there are no grounds to take one of the decisions described in sub- paragraphs (i) or (ii) of the first paragraph of Article 227, the judge shall set the case down for trial ... In the order ... the judge shall decide on the following matters: ...

(vi) The measure of restraint, except for cases where pre-trial detention or house arrest are applied...”

Article 255. Measures of restraint during trial

“1. During the trial the court may order, modify, or lift a precautionary measure in respect of the accused.

2. If the defendant has been detained before the trial, his detention may not exceed six months from the time the court receives the case for trial to the time when the court delivers the sentence, subject to the exceptions set forth in § 3 of this Article.

3. The court ... may extend the accused's detention during trial. It is possible to extend detention only in respect of a defendant charged with a serious crime or an especially serious crime, and each time for a period of up to 3 months...”

Article 376. Setting the case down for the appeal hearing

“1. Having received the criminal case with the notice of appeal ... the judge shall fix the date, time and venue of the [appeal] hearing.

2. The parties shall be notified of the date, time and venue [of the appeal hearing] no later than fourteen days beforehand. The court shall decide whether the convicted detainee should be summoned to the hearing.

3. A convicted detainee who has expressed a wish to be present [at the appeal hearing] shall have the right to be present personally or to submit his arguments by video link. The court shall decide in what form the participation of the convicted person in the hearing is to be secured. ...”

Article 241. Public nature of the trial

“1. Trials of criminal cases in all courts shall be public, with the exception of the cases indicated in the present Article.

2. Judicial proceedings in camera are admissible on the basis of a determination or a ruling of the court in the event that:

(i) proceedings in the criminal case in open court may lead to disclosure of a State or any other secret protected by the federal law;

(ii) the criminal case being tried relates to a crime committed by a person who has not reached sixteen years of age;

(iii) the trial of criminal cases involving a crime against sexual inviolability or individual sexual freedom, or another crime where the trial may lead to disclosure of information about the intimate aspects of the life of the participants in the criminal proceedings or of humiliating information.

(iv) this is required in the interest of guaranteeing the safety of those taking part in the trial proceedings and that of their immediate family, relatives or persons close to them;

Where a court decides to hold a hearing in camera, it shall indicate the specific circumstances in support of that decision in its ruling on this point. ...”

87. On 8 April 2004 the Constitutional Court of the Russian Federation delivered decision no. 132-O in which it held that Articles 108 and 109 of the CCrP should be interpreted as guaranteeing to the accused the right to participate in any detention hearing, in particular when the judge sets down the case for the trial under Article 231 of the Code.

88. On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-P. In particular, the Constitutional Court held:

“Since deprivation of liberty ... is permissible only pursuant to a court decision, taken at a hearing ... on condition that the detainee has been provided with an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing shall apply to all court decisions, whether they concern the initial imposition of this measure of restraint or its confirmation.”

89. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the Supreme Court's refusal to permit a detainee to attend the appeal hearings on the issue of detention. It held:

“Article 376 of the Code of Criminal Procedure, which regulates the presence of a defendant remanded in custody before the appeal court ... cannot be interpreted as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...”

B. Confidentiality of lawyer-client contacts in prison

90. The Pre-trial Detention Act of 1995 (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995), as in force at the material time, provides in section 18 that a detainee has a right to confidential meetings with his lawyers. That section does not define whether the lawyer and the client are entitled to make notes during such meetings and to exchange any documents. The meeting should be conducted out of the hearing of prison staff, but the prison staff should be able to see what is happening in the hearing room. Section 18 establishes that a meeting can be interrupted if the person meeting the detainee tries to hand him “prohibited objects, substance, or food stuff” or to give him “information which may obstruct the establishment of truth in the criminal case or facilitate criminal acts”.

91. Section 20 establishes that all correspondence by detainees goes through the prison administration, which may open and inspect the mail. Correspondence addressed to the courts, to the ombudsman, to the prosecuting authorities, to the European Court of Human Rights, etc., is free from perusal but lawyers are not mentioned in this list (for more details see Moiseyev v. Russia, no. 62936/00, § 117, 9 October 2008). It appears (see the paragraphs immediately below) that the Pre-trial Detention Act was routinely interpreted by the prison authorities as allowing the former to seize and inspect correspondence between a detainee and his lawyer.

92. Section 34 of the Pre-trial Detention Act establishes as follows:

“Where there are sufficient reasons to suspect that a person entering or leaving the prison carries prohibited objects, substances [or] food stuff, the prison officials maysearch their clothes and belongings ... and seize the objects, substances and food stuff... which [detainees] are not allowed to have or to use.”

93. The Internal Regulations for Remand Prisons, introduced by Decree no. 189 of the Ministry of Justice of 14 October 2005, contained section 146, which established that lawyers cannot use computers, audio- and video-recording equipment, copying machines, etc., during meetings with their clients in remand prisons unless authorised by the prison administration. On 31 October 2007 the Supreme Court of the Russian Federation struck down that provision as unlawful (decision confirmed on 29 January 2008).

94. On 29 November 2010 the Constitutional Court of the Russian Federation interpreted the above provisions of the Pre-trial Detention Act in their constitutional meaning. The Constitutional Court held that the law may legitimately introduce certain limitations on the lawyer-client confidentiality, including perusal of their correspondence. However, such limitations should not be arbitrary, should pursue a legitimate aim and be proportionate to it. Legitimate aims may include preventing further criminal activity by the accused, and preventing him from putting pressure on witnesses or otherwise obstructing justice. The general rule is that the lawyer-client correspondence is privileged and cannot be perused. Any departure from this rule is permissible only in exceptional circumstances where the authorities have valid reasons to believe that the lawyer and/or his client are abusing the confidentiality rule. Further, the Constitutional Court specified that the prison authorities should have “sufficient and reasonable grounds to believe” that the correspondence contains unlawful content and that they may peruse such correspondence only in presence of the persons concerned and on the basis of a written motivated decision. The results of the inspection of the mail should also be recorded. At the same time the Constitutional Court ruled that any correspondence addressed by a detainee to his lawyer but not submitted “through the prison administration”, as provided by the federal law, can be checked by the prison administration.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION

95. The applicant complained about the conditions in remand centres nos. IZ-99/1 and IZ-77/1 in Moscow where he was detained from 25 October 2003 until 9 October 2005. He referred to Article 3 of the Convention, which provides:

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

A. The Government's observations

96. The Government claimed in their observations that the applicant had been detained in appropriate conditions (see their account of the conditions of detention in the “Facts” part above). They also claimed that the applicant had not lodged any complaint with the bodies mentioned in section 21 of the 1995 Pre-trial Detention Act. The Government indicated that the conditions in the cells were appropriate both before and after the renovation works carried out in 2005. The repairs of 2005 were of a purely cosmetic character; their goal was to change the decorative appearance of the cells.

97. As to the refusal to allow the PACE Special Rapporteur and a Russian Member of Parliament permission to visit the applicant to inspect the conditions of his detention, the Government maintained as follows: the request of the PACE Special Rapporteur was addressed to the Ministry of Justice, which was in charge of remand prisons. However, the Ministry of Justice was not supposed to allow a visit to a detainee without the approval of the investigator or other body which is responsible for the criminal case against that detainee. The PACE Special Rapporteur had no special status under the domestic law that would allow her to visit the applicant without prior authorisation. In such circumstances the Meshchanskiy District Court rightly considered that she should not be allowed to visit the applicant. As to the alleged refusal to allow a member of parliament to visit the applicant, the Government claimed that throughout the period under consideration the administration of the penitentiary institution had never received any requests from any MP to allow a visit to the applicant.

B. The applicant's observations

98. The applicant submitted that the toilet facilities, cramped accommodation and lack of ventilation in his cell were such as to be described as degrading. He referred in this respect to Popov v. Russia, no. 26853/04, 13 July 2006, and Peers v. Greece, application no. 28524/95,

§§ 70-72, ECHR 2001-III. The Government's account was based on an inspection made in 2006, after the refurbishment of the cells.

99. The applicant further claimed that he had exhausted domestic remedies by lodging the complaints of 9 November 2004 and 7 February 2005 with the Moscow City Court. The applicant had also described theconditions of his detention in similar terms in his cassation appeal against the judgment of the Meshchanskiy District Court.

100. The applicant was left with no means of obtaining independent verification of his cell conditions. The applicant's lawyers were not permitted access to the cells in which the applicant was detained. Members of the Russian parliament, members of the European Parliament, and the Special Rapporteur of the Parliamentary Assembly of the Council of Europe had similarly been denied access to visit the applicant.

C. The Court's analysis

1. General principles

101. As the Court has held on many occasions, legitimate measures depriving a person of his liberty may often involve an element of suffering and humiliation. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. What the State must do under this provision is to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valaљinas

v. Lithuania, no. 44558/98, § 102, ECHR 2001-VIII.). When assessing conditions of detention, one must consider their cumulative effects as well as the applicant's specific allegations (see Dougoz v. Greece, no. 40907/98,

§ 46, ECHR 2001-II).

102. The Court reiterates that in certain cases the lack of personal space afforded to detainees in Russian remand prisons has been found to be so extreme as to justify, in its own right, a finding of a violation of Article 3 of the Convention. In several previous cases against Russia where the applicants were held in cells with less than three square metres of personal space the Court found a violation of Article 3 on that account alone (see, for example, Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. Russia, no. 62208/00,

§ 44, 16 June 2005). In addition, such factors as access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements, the opportunity to use the toilet in private and the availability of ventilation are relevant to the assessment of whether the acceptable threshold of suffering or degradation has been exceeded (see, for example, Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; and Peers v. Greece, no. 28524/95,

§§ 70-72, ECHR 2001-III). That list is not exhaustive; other conditions ofdetention may lead the Court to the conclusion that the applicant was subjected to “inhuman or degrading treatment” (see, for example, Fedotov

v. Russia, no. 5140/02, § 68, 25 October 2005; Trepashkin, cited above,

§ 94; and Slyusarev v. Russia, no. 60333/00, § 36, ECHR 2010-...).

2. Application to the present case

(a) Conditions in remand prison IZ-77/1 (25-27 October 2003)

103. The Court notes that on the day of his arrest the applicant was placed in cell no. 276, measuring 20.44 square metres, which he shared with three other detainees. Thus, the applicant had over five metres of personal space in that cell. The applicant was detained there for less than three full days. Given the shortness of his detention in that cell, the Court considers that there was no breach of Article 3 of the Convention on account of the conditions of his detention during that period.

(a) Conditions in remand prison IZ-99/1 (27 October 2003 - 8 August 2005)

104. From 27 October 2003 the applicant was detained in another remand prison, no. IZ-99/1. He claimed that he had had slightly over 4 square metres of personal space in that remand prison. He acknowledged at the same time that the number of inmates had not exceeded the number of sleeping places. The Government produced different figures: they maintained that the applicant had had from 4.45 to over 5 square metres of personal space, depending on the cell. In support of their claims, the Government submitted the exact measurements the cells and indicated the number of sleeping places in each of them. The Court has no reason to distrust those documents, at least in so far as the data on the size of the cells and the number of inmates is concerned. The Court thus accepts the figures provided by the Government. The Court does not lose sight of the fact that the applicant's cells were equipped with some furniture and contained such fittings as a toilet, beds, etc, which must have further reduced the floor space available to him (see Andreyevskiy v. Russia, o. 1750/03, § 85, 9 January 2009). However, even taking into account that factor the Court cannot conclude that the cells in which the applicant was detained in remand prison IZ-99/1 were seriously overcrowded, and that the applicant was affected by the general overpopulation problem that exists in many Russian remand prisons. It has therefore to be ascertained whether the other conditions of his detention were compatible with the requirements of Article 3 of the Convention.

105. As regards the sanitary and hygienic conditions in the cells, the parties' descriptions differed significantly. Thus, the applicant complained of insufficient ventilation, inadequate temperature control and the lack of privacy in using the toilet facilities, whereas the Government denied those allegations. The applicant also complained about the conditions in the walking yards.

106. The first question for the Court to decide in this respect concerns the establishment of the facts. The applicant's own words are insufficient to prove his allegations. In practice it may be very difficult for a detainee to collect evidence about the material conditions of his detention, and the Court has already observed the difficulties experienced by applicants in substantiating their grievances in respect of the conditions of pre-trial detention in Russia (see Shcherbakov v. Russia (no. 23939/02, § 81, 17 June 2010). Generally, a detainee cannot question witnesses, take photos of his cell, measure the levels of humidity, temperature, etc. Such inspections are usually made either by the prison authorities themselves or by special bodies supervising the prisons. Ideally, the material conditions of detention should be assessed by independent observers. That being noted, the Court does not consider that the refusal of the State to allow independent observers to visit the applicant (irrespective of whether that refusal was lawful or not) gave rise to a separate problem under the Convention. At the same time, had such an inspection taken place, it could have helped the Government to refute the applicant's allegations. The Court reiterates that in the context of complaints about conditions of detention it is permissible, under certain circumstances, to shift the burden of proof from the applicant to the Government (see, among other authorities, Zakharkin v. Russia, no. 1555/04, § 123, 10 June 2010; Kokoshkina v. Russia, no. 2052/08, § 59, 28 May 2009, and Ahmet Цzkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). A failure on the part of a Government to submit convincing evidence on conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see Gubin v. Russia, no. 8217/04, § 56, 17 June 2010; Timurtaє v. Turkey, no. 23531/94, § 66 in fine, ECHR 2000-VI).

107. The Court notes that poor sanitary and hygienic conditions in various Moscow remand prisons have been at the heart of a large number of cases before it. The Court has examined several cases where the applicants presented very similar complaints to those of the applicant in the case at hand (see, for example, the case of Andreyevskiy v. Russia, cited above,

§§ 30 et seq.; see also Gubin v. Russia, cited above, §§ 20 et seq., 17 June 2010; Starokadomskiy v. Russia, no. 42239/02, § 23, 31 July 2008; Popov

v. Russia, no. 26853/04, §§ 50 et seq., 13 July 2006; Denisenko and Bogdanchikov v. Russia, no. 3811/02, §§ 37 et seq., 12 February 2009; Sudarkov v. Russia, no. 3130/03, §§ 17 and 22, 10 July 2008; Belashev

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