Постановление ЕСПЧ от 14.06.2016 <Дело Уразов (Urazov) против России> (жалоба N 42147/05) [англ.] Часть 2

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III. Alleged violation of Articles 3 and 6 of the Convention
on account of the applicant’s confinement in a metal
cage in the courtroom before the trial Court

77. The applicant complained that his confinement in a metal cage in the courtroom before the trial court had been in violation of the principles of equality of arms and of the presumption of innocence. He relied on Article 6 of the Convention which, in so far as relevant, provides:
«1. In the determination of… any criminal charge against him, everyone is entitled to a fair… hearing…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. 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.»
The Court decided ex officio to examine the issues raised by the applicant also under Article 3 of the Convention and to obtain the parties’ submissions thereon. Article 3 of the Convention provides:
«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

A. The parties’ submissions

78. The Government submitted that when suspects and accused people who faced detention on remand as a preventive measure were escorted to courthouses they were placed before the court on benches «behind a barrier (metal enclosure/cage)» measuring 355 cm in length, 225 cm in height and 115 cm in width. The metal enclosure was primarily intended to enforce the restrictions associated with the custodial measure, that is, to exclude the risk of flight, influencing witnesses or otherwise obstructing the administration of justice. The applicant’s confinement in the metal cage had not violated the principle of equality of arms and the presumption of innocence. The applicant had been able to communicate freely with the court, his lawyers, the victim and other participants at the trial and exercise his procedural rights without restrictions. When the applicant had not wanted to communicate with his lawyer in the presence of the escort, the court adjourned. Under no circumstances had the applicant’s confinement in the metal cage meant that the court had been predisposed to deliver a finding of guilt. The Government further submitted that the applicant’s confinement in the metal cage in the courtroom had not amounted to a violation of the applicant’s right not to be subjected to inhuman or degrading treatment, because the measure in question had been a reasonable and indispensable restriction applied within the framework of the criminal procedure existing in Russia and had not reached the minimum level of severity to attain the threshold of Article 3 of the Convention.
79. The applicant submitted, first of all, that his placement in a metal cage during the trial had prevented his free and confidential communication with his lawyer because the escort officers had remained by the cage at all times and had made such communication impossible. Contrary to the Government’s assertion, the court had never adjourned so as to enable the applicant to discuss his position with his lawyer. Secondly, the applicant’s placement in the metal cage in the courtroom had influenced the witnesses, making them perceive him as being guilty and had thus put him at a disadvantage the prosecution. Confinement in the metal cage had furthermore aroused feelings in the applicant of anguish, inferiority and that the outcome of the proceedings had already been decided, exceeding the unavoidable level of suffering inherent in detention.

B. The Court’s assessment

1. Admissibility

80. 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.

2. Merits

(a) Article 3 of the Convention
81. For a summary of the relevant general principles see Svinarenko and Slyadnev (cited above, §§ 113 — 18).
82. The Court reiterates its earlier findings in Svinarenko and Slyadnev (cited above), where it came to the conclusion that holding a person in a metal cage during a trial constituted in itself an affront to human dignity and amounted to degrading treatment in breach of Article 3 of the Convention. The Court held, in particular, as follows:
«122. The Court is confronted in the present case with a practice of placing defendants in metal cages when they appear before a court in criminal proceedings while remanded in custody…
125. The Court observes, on the basis of photographs of a courtroom at the Magadan Regional Court, that the applicants were confined in an enclosure formed by metal rods on four sides and a wire ceiling (see paragraph 48 above), which can be described as a cage…
127. The Court agrees with the Government that order and security in the courtroom are of great importance and can be seen as indispensable for the proper administration of justice. It is not the Court’s task to discuss questions concerning the architecture of the courtroom, nor to give indications as to what specific measures of physical restraint may be necessary. However, the means chosen for ensuring such order and security must not involve measures of restraint which by virtue of their level of severity (see paragraph 114 above) or by their very nature would bring them within the scope of Article 3. For, as the Court has repeatedly stated, Article 3 prohibits in absolute terms torture and inhuman or degrading treatment or punishment, which is why there can be no justification for any such treatment.
128. The Court will therefore first examine whether the minimum level of severity referred to in paragraph 127 above has been reached in the circumstances. In doing so, it will have regard to the effects which the impugned measure of restraint had on the applicants.
129. In this respect, the Court observes that the applicants’ case was tried by a court composed of twelve jurors, with two further substitute jurors present, and the presiding judge. It also notes the presence in the courtroom of other participants in the proceedings…, as well as the fact that the hearings were open to the general public. It considers that the applicants’ exposure to the public eye in a cage must have undermined their image and must have aroused in them feelings of humiliation, helplessness, fear, anguish and inferiority.
130. The Court further observes that the applicants were subjected to the impugned treatment during the entire jury trial before the Magadan Regional Court which lasted more than a year with several hearings held almost every month.

133. The Court takes the view that the applicants must have had objectively justified fears that their exposure in a cage during hearings in their case would convey to their judges, who were to take decisions on the issues concerning their criminal liability and liberty, a negative image of them as being dangerous to the point of requiring such an extreme physical restraint, thus undermining the presumption of innocence. This must have caused them anxiety and distress, given the seriousness of what was at stake for them in the proceedings in question.

135. Lastly, the Court finds no convincing arguments to the effect that, in present-day circumstances, holding a defendant in a cage (as described in paragraph 125, above) during a trial is a necessary means of physically restraining him, preventing his escape, dealing with disorderly or aggressive behaviour, or protecting him against aggression from outside. Its continued practice can therefore hardly be understood otherwise than as a means of degrading and humiliating the caged person. The object of humiliating and debasing the person held in a cage during a trial is thus apparent.
136. Against this background, the Court finds that the applicants’ confinement in a cage in the courtroom during their trial must inevitably have subjected them to distress of an intensity exceeding the unavoidable level of suffering inherent in their detention during a court appearance, and that the impugned treatment has attained the minimum level of severity to bring it within the scope of Article 3.
137. The Court does not consider that the use of cages (as described above) in this context can ever be justified under Article 3…
138. Regardless of the concrete circumstances in the present case, the Court reiterates that the very essence of the Convention is respect for human dignity and that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. It is therefore of the view that holding a person in a metal cage during a trial constitutes in itself — having regard to its objectively degrading nature which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society — an affront to human dignity in breach of Article 3.»
83. Turning to the present case and having examined the parties’ arguments, the Court does not see any reason to depart from its findings in Svinarenko and Slyadnev (cited above) in this regard. It follows, therefore, that the applicant’s confinement in a metal cage in the courtroom amounted to degrading treatment prohibited by Article 3 of the Convention. There has accordingly been a violation of that provision.
(b) Article 6 of the Convention
84. The Court reiterates that the principles of equality of arms and of the presumption of innocence are specific elements of the wider concept of a fair trial in criminal proceedings. The former principle implies that each party must be afforded a reasonable opportunity to present his case — including his evidence — under conditions that do not place him at a substantial disadvantage his opponent, while the latter principle will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see Ashot Harutyunyan v. Armenia, no. 34334/04, § 136, 15 June 2010, with further references).
(i) Communication with the lawyer during the trial
85. Respect for lawyer-client confidentiality is very important in the context of Article 6 §§ 1 and 3 (c) of the Convention. An accused’s right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trial. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, «his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective» (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 627, 25 July 2013, with further references).
86. An interference with the lawyer-client privilege does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court’s view, to limit the effectiveness of the assistance which the lawyer could provide (see Khodorkovskiy v. Russia, no. 5829/04, § 232, 31 May 2011).
87. The Court observes that in the present case the applicant was confined in a metal cage throughout the trial. Escort officers remained standing in close proximity to the cage at all times. The applicant considered that such an arrangement did not enable him to have free and confidential exchanges with his lawyer during the trial.
88. The Government argued that when the applicant had not wanted to communicate with his lawyer in the presence of the escort officers the court adjourned to enable him to discuss his position with the lawyer in private. The Court notes, however, that the Government failed to provide any evidence in support of their argument or to furnish any information on the possible facilities for the applicant to communicate with his lawyer during such adjournments, if indeed there were any.
89. The Court observes that in Khodorkovskiy and Lebedev (cited above) it found a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of unnecessary restrictions on the applicants’ right to confidential communication with their lawyers during the trial due to the permanent presence of escort officers near the metal cage and the minimal distance the lawyers had to respect. It further held that the fact that the defence was able to request adjournments during the hearings had been irrelevant for its analysis as during those adjournments the lawyers were unable to discuss the case with their clients anywhere but in the hearing room, that is in the immediate vicinity of the prison guards (ibid. §§ 642 — 47).
90. The Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. It concludes, therefore, that there has been a breach of Article 6 §§ 1 and 3 (c) of the Convention on account of the lack of confidential communication between the applicant and his lawyer during the trial.
(ii) Presumption of innocence
91. In the present case the Court has already found that the conditions of the applicant’s confinement in the courtroom throughout the trial were humiliating (see paragraphs 81 — 83 above). In finding a violation under Article 3 of the Convention on that account, the Court has given consideration to the fact that the applicant must have had objectively justified fears that his exposure in a cage during hearings in his case would convey a negative image of him to the judges as being dangerous to the point of requiring such extreme physical restraint, thus undermining the presumption of innocence (see paragraph 82 above). It has thereby already addressed the essence of the applicant’s complaint under Article 6 § 2 of the Convention (Khodorkovskiy and Lebedev, cited above, §§ 743 — 44).
92. The Court considers, therefore, that it is not necessary to examine the applicant’s complaint under Article 6 § 2 of the Convention separately.

IV. Alleged violation of Article 5 § 4 of the Convention

93. The applicant further complained that the examination of his appeals against the decisions of 7 April 2005 and 11 April 2006 dismissing his applications for release had been discontinued. He relied on Article 5 § 4 of the Convention, which reads as follows:
«Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.»

A. The parties’ submissions

94. The Government submitted that the examination of the applicant’s appeals against the decisions of 7 April 2005 and 11 April 2006 had been discontinued in compliance with domestic law, which did not provide for the possibility to challenge the rulings of a court rendered in the course of a trial. The lawfulness of the applicant’s continued detention had further been examined by the domestic court when the applicant had made subsequent requests for the alteration or termination of the custodial measure. The requirements of Article 5 § 4 of the Convention had therefore been respected.
95. The applicant maintained his complaint.

B. The Court’s assessment

1. Admissibility

96. 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.

2. Merits

97. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the «lawfulness», in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4 of the Convention, a «review of the lawfulness of the applicant’s detention» must comply with both the substantive and the procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5 of the Convention, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A no. 185-C).
98. The Court observes that on 20 May 2005 and 25 May 2006 respectively the Regional Court discontinued its examination of the applicant’s appeals against the decision of 7 April 2005 dismissing his application for release and extending his detention pending trial, and the decision of 11 April 2006 dismissing his application for release. The Regional Court reasoned that the court’s rulings rendered in the course of the trial were not amenable to separate appeal (see paragraphs 16 and 23 above).
99. The Court has on several occasions examined similar issues in other Russian cases and found violations of Article 5 § 4 of the Convention on account of the failure of the domestic court to consider the substance of the applicants’ appeals against the decisions rejecting their applications for release (see Manerov, cited above, §§ 35 — 38; Chuprikov v. Russia, no. 17504/07, §§ 83 — 87, 12 June 2014; and Makarenko v. Russia, no. 5962/03, §§ 122 — 25, 22 December 2009). The Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to the appeal court’s failure to examine the issue of the applicant’s arrest and to take cognisance of any arguments concerning the aspects of the lawfulness of his detention, the Court considers that the applicant was unable to obtain an adequate judicial response for the purposes of Article 5 § 4 and that his right to bring proceedings by which the lawfulness of his detention would be decided was infringed.
100. It follows that there has been a violation of Article 5 § 4 of the Convention on account of the failure to consider the substance of the applicant’s appeals against the decisions of 7 April 2005 and 11 April 2006.

V. Other alleged violations of the Convention

101. Lastly, the applicant raised further complaints under Articles 5 and 6 of the Convention. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. Application of Article 41 of the Convention

102. 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.»

A. Damage

103. The applicant claimed 8,500 euros (EUR) in respect of pecuniary damage, which represents the approximate amount spent by the applicant’s relatives for sending food parcels and money transfers to the applicant in order to maintain his health while he was detained in the remand prison. He further claimed EUR 1,370,250 in respect of non-pecuniary damage.
104. The Government made no comments on the applicant’s claim for pecuniary damage. They further submitted that the claim in respect of non-pecuniary damage was excessive and that the finding of a violation would in itself constitute sufficient just satisfaction.
105. The Court considers that there is no causal link between the violations found and the pecuniary damage claimed. Consequently, it finds no reason to award the applicant any sum under this head.
106. As to the non-pecuniary damage, the Court notes that it has found a combination of serious violations in the present case. The applicant was not afforded adequate medical assistance while in detention, no effective domestic remedies were available to him in that regard, he was confined in a metal cage throughout the trial and could not enjoy confidential communication with his lawyer. Furthermore, he was denied the right to an effective review of his detention. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, and having regard to the award made to the applicant under the unilateral declaration (see paragraphs 48 and 54 above), the Court awards the applicant EUR 3,575 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. The Court further notes that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention.

B. Costs and expenses

107. The applicant claimed EUR 2,500 for legal fees incurred before the domestic courts and the Court. He did not furnish any documents supporting his claim.
108. The Government did not submit any comments.
109. 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 the above criteria, the Court rejects the applicant’s claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides having regard to the terms of the Government’s declaration, and the arrangements for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints:
(a) under Article 3 of the Convention about the inhuman and degrading conditions of the applicant’s detention in remand prison IZ-30/1 in the Astrakhan Region between 17 June 2004 and 22 January 2007 and between 5 May 2007 and 25 February 2008;
(b) under Article 3 of the Convention about the inhuman and degrading conditions of the applicant’s transport to and from the courthouse;
(c) under Article 13 of the Convention about the absence of an effective domestic remedy in connection with the above complaints under Article 3 of the Convention;
(d) under Article 5 § 1 of the Convention about the unlawfulness of the applicant’s pre-trial detention between 15 August 2004 and 16 February 2005; and
(e) under Article 5 § 3 of the Convention about the lack of relevant and sufficient reasons for the applicant’s pre-trial detention between 16 June 2004 and 29 June 2006;
2. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint about inadequate medical assistance in remand prison and rejects it;
3. Declares admissible the complaints:
(a) under Article 3 of the Convention about inadequate medical assistance in detention and under Article 13 of the Convention about the absence of an effective domestic remedy in this respect;
(b) under Article 3 of the Convention about the applicant’s confinement in a metal cage in the courtroom;
(c) under Article 6 §§ 1 and 3 (c) of the Convention about the lack of confidential communication between the applicant and his lawyer during the trial;
(d) under Article 6 § 2 of the Convention about the breach of the applicant’s presumption of innocence;
(e) under Article 5 § 4 of the Convention about the failure to consider the substance of the applicant’s appeals against the decisions of 7 April 2005 and 11 April 2006 rejecting his requests for release;
and the remaining complaints inadmissible;
4. Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy to complain about the lack of adequate medical assistance in detention;
5. Holds that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical assistance in detention;
6. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s confinement in a metal cage in the courtroom;
7. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the breach of the right to confidential communication between the applicant and his lawyer during the trial;
8. Holds that it is not necessary to examine separately the applicant’s complaint under Article 6 § 2 of the Convention;
9. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the failure to consider the substance of the applicant’s appeals against the decisions of 7 April 2005 and 11 April 2006 rejecting his requests for release;
10. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,575 (three thousand five hundred and seventy-five 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;
11. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis GUERRA
President

Stephen PHILLIPS
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Silvis is annexed to this judgment.

L.L.G.

J.S.P.

CONCURRING OPINION OF JUDGE SILVIS

I agree fully with the operative part of this judgment, but I wish to make a remark on the reasoning of the majority in regard to the applicant’s complaint of confinement in a cage during trial. The judgment closely follows the reasoning in Svinarenko and Slyadnev ([GC], nos. 32541/08 and 43441/08, §§ 53 — 76, ECHR 2014 (extracts)). In that case the Court established that the applicants must have suffered intensely while being caged in a courtroom. The Court thus found a violation of Article 3 of the Convention, applying the threshold of severity test. However, the Court also stated the view that holding a person in a metal cage during a trial constitutes in itself — having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society — an affront to human dignity in breach of Article 3. In the case of Bouyid v. Belgium ([GC], no. 23380/09, 29 September 2015) the Grand Chamber elaborated on the relationship between human dignity and degrading treatment and concluded that it was not necessary to establish a minimum level of suffering. Thereby the Court departed from the threshold of severity test. The case concerned police-officers slapping arrested persons in the face as a reaction to their disrespectful behaviour. The slap administered to each of the applicants by the police officers while they were under their control in the police station did not correspond to a recourse to physical force that had been made strictly necessary by their conduct, and had thus diminished their dignity. Applying that logic to the use of metal cages in courtrooms could have liberated the reasoning of the Court from the rather speculative effect of intense suffering of the applicant. Putting a person on trial in a metal cage without any necessity is degrading in its denial of human dignity. It is a pity that the Court did not depart from the threshold of severity test in the present case and that it even chose not to refer at all to the Bouyid v. Belgium case.

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