Постановление ЕСПЧ от 05.11.2015 <Дело Чукаев (Chukayev) против России> (жалоба N 36814/06) [англ.]. Часть 2

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THE LAW

  1. Alleged violation of Article 3 of the Convention

 

  1. The applicant complained that the conditions of his detention in IZ-30/1 in Astrakhan were incompatible with Article 3 of the Convention, which reads as follows:

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

 

  1. Admissibility

 

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

 

  1. Merits

 

  1. The applicant’s submissions regarding the conditions of his detention on remand in IZ-30/1 are presented in paragraphs 62 — 64 above.
  2. The Government acknowledged that the conditions of the applicant’s detention in IZ-30/1 were incompatible with the requirements of Article 3 of the Convention on account of the overcrowding.
  3. The Court notes that it examined the conditions of detention in IZ-30/1 between 2005 and 2008 and established that there was severe overcrowding in the facility (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 20 — 21, 134 — 38, 10 January 2012).
  4. Having regard to the information submitted by the applicant and the Government’s acknowledgement that the conditions of his detention on remand during the periods in question had been inadequate, and given its own findings in the case of Ananyev and Others, cited above, the Court finds that the applicant was detained in cramped and inadequate conditions in IZ-30/1. The Court therefore considers that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention.

 

  1. Alleged violation of Article 6 §§ 1 and 3 of the Convention (fair trial)

 

  1. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the overall fairness of the criminal proceedings against him was undermined because he had not been provided with a lawyer after his arrest, had been ordered to pay legal aid fees for representation in supervisory review proceedings, and because he had not been able to question a witness against him.

 

  1. Legal assistance

 

  1. The applicant complained that the trial in his case had not been fair because he had not been provided with a lawyer immediately after his arrest and because the court had ordered him to reimburse the State for legal aid fees incurred during the examination of his case in the third set of supervisory review proceedings. He relied on Article 6 §§ 1 and 3 (c) of the Convention which, in the relevant part, read as follows:

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

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

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

 

  1. Lack of legal assistance after arrest

 

(a) Admissibility

  1. The Government claimed that the applicant had not raised his complaint of a lack of legal assistance upon arrest with the domestic courts.
  2. The applicant argued that he had raised complaints in this regard with both the domestic courts and the Prosecutor’s Office.
  3. Having examined the applicant’s case file, the Court finds that the court records and grounds of appeal contain sufficiently clear and specific allegations that the applicant had not been provided with a lawyer immediately after his arrest. Moreover, it is clear from these documents and the respective judgments that these complaints were understood by the domestic courts as such, but were dismissed. Consequently, the Court concludes that the applicant’s complaint was brought to the attention of the domestic courts competent to deal with it. Accordingly, the Court dismisses the Government’s objection as to non-exhaustion of domestic remedies.
  4. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

(i) The parties’ submissions

  1. The Government stated that on 5 June 2004 the applicant had been informed, immediately after his arrest, of his right to a lawyer from the moment of his arrest but that the applicant had not requested legal assistance. In any event, Article 51 of the CCrP did not require a lawyer to be present at the time of arrest. The applicant had also been informed of his right to remain silent and his wife had been notified of his arrest. The Government further claimed that, under Article 202 of the CCrP, the presence of a lawyer had not been mandatory when the applicant’s fingerprints and palm prints had been taken in order to promptly preserve the traces of the crime, and that the applicant in any event had not requested a lawyer at the time of his arrest and had subsequently used the results of the forensic examination as exculpatory evidence during his trial. Lastly, they contended that the applicant had been scheduled to be questioned on 6 June 2004 as a suspect but had invoked his right not to incriminate himself and refused to answer questions — even in the presence of lawyer Or.
  2. The applicant maintained that on 5 June 2004 he had requested a lawyer immediately after his arrest but that the investigator had told him he did not need a lawyer, as no investigative measures were being carried out at that time. He further contended that his relatives had only learned of his arrest some four days after his arrest, while they were trying to locate his whereabouts. He stated that a lawyer who could have informed him of his rights should have been present when the investigator had ordered the expert examination of his fingerprints and palm prints. He also stated that he had not been questioned on either 5 or 6 June 2006. He further submitted that the original arrest record of 5 June 2004 had been lost from his criminal case file, and that a copy of it, as well as the interrogation report of 6 June 2004 submitted by the Government with their observations, had been forged. He maintained that on 6 June 2004 he had met his lawyer, Or., for the first time during the hearing on his pre-trial detention.

(ii) The Court’s assessment

General principles

  1. The Court notes at the outset that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The applicant’s complaints under Article 6 §§ 1 and 3 should therefore be examined together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).
  2. The Court reiterates that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). The question, in each case, is whether the restriction on the right to benefit from the assistance of a lawyer, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996-I).
  3. The requirements of Article 6 § 3 (c) of the Convention may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with those requirements (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275).
  4. In this respect, the Court emphasises the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression, in defiance of the will of the accused (see Pishchalnikov v. Russia, no. 7025/04, § 69, 24 September 2009, with references cited therein).
  5. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently «practical and effective» Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify the denial of access to a lawyer, such restriction — whatever its justification — must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used to secure a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

Application of these principles to the present case

  1. The Court notes that the applicant was informed of his right to legal counsel immediately after his arrest, in accordance with Article 49 § 3 (3) of the CCrP (see paragraphs 11 and 70 above). According to the record of the applicant’s arrest, he did not request counsel and made no other comments at the time of his arrest (see paragraphs 13 and 59 above). In this regard the Court notes that the applicant’s general allegations concerning the falsification of the record of his arrest were duly examined and dismissed as unsubstantiated by the Astrakhan Regional Court and the Court accepts these findings (see paragraph 59 above).
  2. The Court further notes that when the police proceeded to have the applicant’s fingerprints and palm prints taken they confined themselves to promptly recording the gathered material for the purposes of investigating a criminal offence (see paragraphs 11, 14, 15 and 75 above). According to the applicant’s own submissions, the police did not question him after his arrest (see paragraphs 12 and 93 above).
  3. In this regard, the Court observes that the record of arrest did contain a statement made by the applicant at the time of his arrest (see paragraph 11 above). However, it does not appear from the materials before the Court that the applicant provided this statement in response to questions by the police.
  4. The Court further notes that when the applicant was scheduled to be questioned on 6 June 2006, his lawyer, Or., was present but the applicant refused to testify and made no other comments (see paragraph 16 above).
  5. Furthermore, when the District Court was examining the applicant’s case it took the record of the arrest into account as evidence that the applicant had been caught after «witnesses and eyewitnesses indicated that the applicant had committed a criminal offence» (see paragraph 11 above). The District Court did not regard the applicant’s statement contained in the record of his arrest as a separate statement concerning the charges (see, for similar reasoning, Blaj v. Romania, no. 36259/04, § 96, 8 April 2014). Furthermore, the applicant did not allege, before either the domestic courts or this Court, that he had given any statements — either immediately after his arrest or later — without the benefit of legal advice or under duress. Neither he nor his appointed counsel sought to have the statement contained in the record of his arrest excluded from the evidence and he did not explain in either his observations or his original application to the Court whether and how any such statements had been taken into account by the District Court in finding him guilty or had impaired the overall fairness of the proceedings against him.
  6. The applicant only complained about his fingerprints and palm prints having been taken in his lawyer’s absence. However, in any case, the District Court did not admit as evidence the forensic examination report on the applicant’s fingerprints, and the forensic reports on the applicant’s palm prints served as exculpatory evidence at the trial (see paragraphs 45 — 47 above).
  7. In view of the above, given the circumstances of the present case, the Court concludes that the applicant’s right to counsel upon arrest was not restricted and the absence of a lawyer at the time of the applicant’s arrest did not prejudice the overall fairness of the proceedings against the applicant.
  8. Accordingly, there has been no violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1.

 

  1. Recovery of legal fees for representationin the third set of supervisory review proceedings

 

(a) Admissibility

  1. The Government pleaded that the applicant had not appealed against the court order for the recovery of legal aid fees.
  2. The applicant maintained his claim.
  3. The Court will first consider the Government’s plea of non-exhaustion of domestic remedies and notes that under Russian law at the time, the applicant could have raised a supervisory review complaint with the Supreme Court of Russia against the order to pay costs issued by the Presidium of the Regional Court (see paragraph 78 above). However, the Court reiterates that the supervisory review appeal available at the relevant time in Russia was not regarded as an effective remedy to be exhausted in criminal proceedings (see Berdzenishvili v. Russia, (dec.), 29 January 2004, no. 31697/03). Accordingly, the applicant was not required to raise his complaint in such proceedings before bringing it to the Court. The Court therefore dismisses the Government’s objection as to non-exhaustion of domestic remedies.
  4. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

(i) The parties’ submissions

  1. The Government submitted that the applicant had not applied to be exempted from reimbursing legal aid fees.
  2. The applicant maintained that he had had insufficient financial means when the authorities had appointed a legal aid lawyer to represent him in the supervisory review proceedings, and that they should not have sought from him the reimbursement of his legal aid fees.

(ii) The Court’s assessment

  1. The Court notes that the CCrP regards counsel’s fees as «litigation costs» to be borne, in general, by the party concerned. It thus appears that even if a convicted defendant has been provided with «free» legal assistance, he may still be required to pay for it after his trial (see paragraph 76 above).
  2. The Court observes that the applicant was represented by lawyers Or., M. and I. before and during the first-instance trial and during the appeal proceedings (see paragraphs 16, 18 and 21 above) and by lawyer K. in the third round of supervisory review proceedings (see paragraph 56 above).
  3. The Court further notes from the material before it that the State covered the costs of the applicant’s legal assistance throughout the proceedings. It only sought to recover legal fees paid to K. in respect of the third set of supervisory review proceedings; the amount claimed (EUR 30) does not appear excessive.
  4. In any event, the applicant could have applied for a total or partial waiver of legal fees on account of indigence (see paragraph 76 above and Orlov v. Russia, no. 29652/04, § 113, 21 June 2011). In this connection, the Court considers it acceptable, under the Convention, that the burden of proving insufficient means should be borne by the person who pleads such insufficiency (see Orlov, cited above, § 114, citing Croissant v. Germany, 25 September 1992, §§ 33 and 34, Series A no. 237-B). However, the applicant did not submit any financial or other documents to support his claim for exemption on the grounds of indigence and did not cite any impediment to his obtaining such documents.
  5. Therefore, considering that the applicant had a benefit of free legal assistance throughout the proceedings and that he did not apply to have waived legal fees paid to K. and given the amount of legal fees, the reimbursement order does not appear to have adversely affected the overall fairness of the proceedings against the applicant.
  6. There has accordingly been no violation of Article 6 §§ 1 and 3 (c) on account of the recovery of legal fees from the applicant.

 

  1. Absence of witness

 

  1. The applicant also complained that the trial in his case had not been fair because the court had not obtained the attendance of witness B. for the prosecution. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:

«In the determination of… any criminal charge against him, everyone is entitled to a fair… hearing…

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

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…»

 

  1. Admissibility

 

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

 

  1. Merits

 

(a) The parties’ submissions

  1. The Government claimed that the proceedings against the applicant had been fair. In particular, they submitted that witness B. had not participated in the hearing of the applicant’s case because he was suffering from a serious oncological condition (cancer) that had left him unable to speak. They further alleged that they had taken all necessary steps to ensure B.’s participation in the proceedings against the applicant. Furthermore, the courts had assessed B.’s pre-trial testimony along with other evidence, including statements of fourteen prosecution and defence witnesses questioned in court, pre-trial statements of five more witnesses and twenty pieces of documentary and physical evidence.
  2. The applicant alleged that B.’s condition did not prevent him from appearing in court and if he could not speak, he could have responded to questions in writing. Furthermore, the applicant contended that B.’s pre-trial testimony had been the sole basis for his conviction, and the District Court had not taken into account the testimony of other witnesses when it had found him guilty. Lastly, he alleged that the authorities should have conducted a pre-trial confrontation between him and B.

(b) The Court’s assessment

  1. In the case of Al-Khawaja and Tahery v. the United Kingdom ([GC] nos. 26766/05 and 22228/06, § 118, ECHR 2011), the Court held that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings.
  2. Furthermore, as regards witnesses, the Court reiterates that there are two requirements which follow from this principle. Firstly, there must be a good reason for the non-attendance of a witness. Secondly, when a conviction is based solely or to a decisive degree on statements that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-called «sole or decisive rule») (see Al-Khawaja, cited above, § 119). Where the conviction is based solely or decisively on the evidence of absent witnesses, the Court will inquire in each case whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place (ibid., § 147).
  3. Turning to the facts of the present case, the Court observes that the prosecution summoned B. as a witness to the hearing of the applicant’s case twice. He did not appear because he was gravely ill and unable to speak (see paragraphs 31 and 50 above). The Court accepts the illness as the reason for the absence in accordance with the domestic law. In the light of the above and on the basis of the material before it, the Court therefore considers that B.’s confirmed poor physical condition significantly impaired him and was a good reason for his non-attendance of the trial.
  4. The Court will also examine whether B.’s pre-trial statements were sole or decisive evidence of the applicant’s guilt. The applicant alleged that in finding him guilty, the District Court had only relied on B.’s pre-trial testimony, without taking into account the testimony of other witnesses. However, witness O. who bought drugs from the applicant together with B. in December 2003, testified about the deal and the applicant questioned him in court. Furthermore, according to the trial transcript, the accuracy of which the applicant did not dispute, the applicant had no objections to the admission of O.’s pre-trial statement as evidence (see paragraph 25 above). In this regard, the Court notes that O. and B.’s pre-trial testimony was identical. In particular, they both testified during the pre-trial investigation that they had met the applicant in Astrakhan in November 2003, that he had sold them heroin in December 2003, and that they had transported it to Voronezh (see paragraphs 26 and 32 above). Furthermore, the District Court also heard six police officers who had organised and participated in the undercover operation themselves, and testified about the applicant’s involvement in the sale of drugs (see paragraphs 27, 28 and 38 — 40 above). The applicant was able to question all of them in court and did not repudiate their testimony in his observations to the Court. The District Court also admitted pre-trial statements of two absent police officers and three absent attesting witnesses, as well as a significant amount of documentary and physical evidence (see paragraphs 34 — 36 and 46 above).
  5. Having regard to the above, the Court considers that the applicant’s conviction cannot be said to have been based solely or to a decisive degree on B.’s pre-trial statement. The Court does not therefore find it necessary to assess whether a pre-trial confrontation or other counterbalancing factors should have been in place to compensate for B.’s absence from the applicant’s trial.
  6. Accordingly, the Court finds that there was no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the absence of witness B. from the applicant’s trial.

 

III. Alleged violation of Articles 8 and 34 of the Convention

 

  1. The applicant also complained that his correspondence with the Court had been opened and read by the detention facility’s administration, which had also refused to send some of his letters to the Court. He relied on Articles 8 and 34 of the Convention, which read:

Article 8

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

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

Article 34

«The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.»

  1. The Court has examined complaints concerning the monitoring of correspondence between applicants and the Court under Article 8 of the Convention, under Article 34, or under both provisions (see, with further references, Shekhov v. Russia, no. 12440/04, § 53, 19 June 2014).
  2. As the Court is master of the characterisation to be given to the facts of the case, and having regard to the nature of the interference and the contents of the applicant’s submissions, it considers that the matters relating to the correspondence between the applicant and the Court should be examined under Articles 8 of the Convention.

 

  1. Admissibility

 

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

 

  1. Merits

 

  1. Submissions by the parties

 

  1. The Government denied hindering the effective exercise of the applicant’s right of petition. They claimed that some of the Court’s letters had been opened by prison employees, but maintained that they had not been censored. They had been opened for registration purposes only and had been handed over to the applicant in their entirety. One letter had been sent to him after a four-day delay, but this was due to an omission by one of the prison employees who had been duly reprimanded.
  2. The applicant maintained his claims.

 

  1. The Court’s assessment

 

  1. The Court observes that the applicant claimed that at least seven of the Court’s letters had been opened by the prison administration. The Government stated that the letters had been opened for registration purposes only, without being read. The Court considers that the opening of the letters addressed to the applicant constituted an interference with his rights under Article 8.
  2. The Court reiterates that interference with Article 8 rights must be applied «in accordance with the law»; it must pursue one or more of the legitimate aims listed in paragraph 2; and, in addition, must be justified as being «necessary in a democratic society».
  3. The Court notes that at the relevant time, Article 91 of the Code of Execution of Sentences expressly prohibited the monitoring of correspondence between a detainee and the Court (see paragraph 79 above). The applicant’s correspondence with the Court was privileged and not subject to monitoring. Thus, the Court’s letters were opened in breach of domestic law, which provided for no exception to the regulation in question.
  4. In the light of the above finding, it is not necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with.
  5. Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention on account of the opening of the applicant’s correspondence with the Court.

 

  1. Other alleged violations of the Convention

 

  1. Lastly, the Court has examined the other complaints submitted by the applicant under Article 2, Article 3, Article 5, Article 6, Article 7, Article 8 and Article 14 of the Convention. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

 

  1. Damage

 

  1. The applicant claimed compensation in respect of pecuniary damage, leaving the amount to be awarded to the Court’s discretion. The Government submitted that the applicant did not claim any at all. The Court observes that the applicant failed to substantiate his claim of pecuniary damage incurred and, for that reason, rejects it.
  2. The applicant also claimed 100,000 euros (EUR) in respect of non-pecuniary damage for a violation of Article 3 of the Convention and EUR 100,000 for the interference with his correspondence.
  3. The Government considered that the acknowledgment of a violation, if found by the Court, would constitute sufficient just satisfaction in the present case. They contested the claim for compensation for non-pecuniary damage by the applicant as unsubstantiated, excessive and out of line with the awards made by the Court in similar cases.
  4. The Court considers that the applicant’s suffering caused by the conditions of detention on remand and his frustration with the monitoring of his correspondence with the Court cannot be compensated for by the mere finding of a violation; however, the sums claimed by him appear to be excessive. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. The applicant claimed, in general terms, compensation in respect of legal costs and expenses incurred before the domestic courts and the Court, leaving the amount to be awarded to the Court’s discretion.
  2. The Government submitted that the applicant did not claim any compensation in respect of costs and expenses, and therefore no award should be made.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the fact that the applicant has been granted legal aid, the Court rejects the applicant’s additional claim for costs and expenses.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

 

  1. Declares the complaints concerning the conditions of detention on remand, the absence of legal representation after arrest, recovery of legal fees, absence of witness from trial and monitoring of the applicant’s correspondence with the Court admissible and the remainder of the application inadmissible;
  2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions of detention on remand in IZ-30/1 in Astrakhan;
  3. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) the Convention on account of the lack of legal assistance after arrest;
  4. Holds that there has been no violation of Article 6 §§ 1 and 3 (c) on account of recovery of legal fees paid for legal representation the third set of supervisory review proceedings;
  5. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) on account of absence of witness;
  6. Holds that there has been a violation of Article 8 the Convention on account of opening of the applicant’s correspondence with the Court by the prison authorities;
  7. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President
WAMPACH
Deputy Registrar

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