Постановление ЕСПЧ от 13.12.2016 <Дело Идалов (Idalov) против России (N 2)> (жалоба N 41858/08) [англ.] — 2

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THE LAW

  1. Alleged violation of Article 3 of the Convention on account of alleged ill-treatment

 

  1. The applicant complained that on several occasions he had been subjected to ill-treatment while in custody and that the investigation in response to his complaints had not been effective. He relied on Articles 3 and 13 of the Convention. The Court will examine the complaint from the standpoint of Article 3 of the Convention, which reads as follows:

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

 

  1. Admissibility

 

  1. In his observations the applicant stated that he did not intend to maintain his complaint in respect of the incident of 24 June 2012 given that the authorities had instituted criminal proceedings against Ur.
  2. The Court accepts that, in these circumstances, the applicant no longer wishes to pursue this part of the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the applicant’s complaint under Article 3 of the Convention in respect of the incident of 24 June 2012.
  3. As regards the complaint in the parts concerning the incidents of 21 May and 25 September 2009, 29 October 2009, 29 September and 1 October 2012, the Court notes that it 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 parties’ submissions

 

  1. The applicant maintained that he had been repeatedly subjected to ill-treatment while in custody and that the inquiries in response to his complaints had been incomplete. The investigators had failed to identify and question potential witnesses. Medical examinations of the applicant had been conducted with significant delay or not conducted at all. He had never been informed of the progress of the inquiries. At no time had the authorities opened a fully-fledged criminal investigation to clarify the facts the applicants had complained of.
  2. The Government submitted that the applicant’s allegations of ill-treatment in custody had been subjected to examination by competent authorities. The inquiries conducted in response to the applicant’s complaints had not borne out his allegations. As regards the incidents of 21 May 2009, 29 October 2010, and 24 June, 29 September and 1 October 2012, the earlier refusals to institute criminal proceedings had been quashed and the matter had been remitted for further inquiry, which was still pending.

 

  1. The Court’s assessment

 

(a) General principles

(i) Alleged ill-treatment

  1. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI).
  2. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by them (see v. Germany [GC], no. 22978/05, § 93, ECHR 2010).
  3. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof «beyond reasonable doubt» but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).
  4. The ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (see Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports of Judgments and Decisions 1998-VIII, and Bouyid v. Belgium [GC], no. 23380/09, §§ 100 — 01, ECHR 2015). The burden of proof rests on the Government to demonstrate with convincing arguments that the use of force resulting in the applicant’s injuries was not excessive (see, for example, Dzwonkowski v. Poland, no. 46702/99, § 51, 12 April 2007).

(ii) Investigation into the allegations of ill-treatment

  1. The general principles concerning the right to the conduct of an effective investigation into allegations of ill-treatment are well established in the Court’s case-law and may be summarised as follows (see Lyapin v. Russia, no. 46956/09, 24 July 2014):

«125. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to «secure to everyone within their jurisdiction the rights and freedoms defined in… [the] Convention», requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

  1. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, for example, Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Thus, the mere fact that appropriate steps were not taken to reduce the risk of collusion between alleged perpetrators amounts to a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007-II, and Turluyeva v. Russia, no. 63638/09, § 107, 20 June 2013). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law had been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).
  2. It falls to the State to have recourse to a procedure which would enable it to take all measures necessary for it to comply with its positive obligation of effective investigation imposed by Article 3 (see, mutatis mutandis, Sashov and Others v. Bulgaria, no. 14383/03, §§ 64, 68 and 69, 7 January 2010; see also Vanfuli v. Russia, no. 24885/05, § 79, 3 November 2011; Nechto v. Russia, no. 24893/05, § 87, 24 January 2012; and Nitsov v. Russia, no. 35389/04, § 60, 3 May 2012).»

(b) Application of these principles to the present case

(i) Incidents of 21 May 2009, 29 October 2010, 29 September and 1 October 2012

Alleged ill-treatment

  1. Turning to the circumstances of the present case, the Court observes that the applicant provided a clear account of the events in respect of the alleged incidents of ill-treatment in custody. His version of the events did not contradict the evidence submitted by the parties. The applicant sustained multiple injuries and his allegations of ill-treatment in custody were sufficiently serious for the authorities to open a formal inquiry in each case (see paragraphs 32 — 34, 51 and 58 above).
  2. Against this background, and being mindful of the fact that the applicant had been in the State’s custody for the entire time, the Court considers that the applicant has made out a prima facie case in support of his complaint of ill-treatment. The burden therefore rests on the Government to provide a satisfactory and convincing explanation as to the events in question.
  3. The Court notes that the Government did no more than inform the Court that the investigation into the applicant’s allegations was still pending. No documents or further details were provided. In such circumstances, the Court considers that the Government has failed to provide a satisfactory and convincing explanation as to the applicant’s complaint and accepts his version of the events.
  4. It remains for the Court to ascertain whether the treatment complained of by the applicant attained a minimum level of severity such as to fall within the scope of Article 3. In the light of the medical documents in the Court’s possession, it considers that the injuries inflicted on the applicant were sufficiently serious to amount to ill-treatment within the meaning of Article 3.
  5. It follows that there has been a violation of Article 3 of the Convention under its substantive limb on account of the treatment to which the applicant was subjected on 21 May 2009, 29 October 2010, and 29 September and 1 October 2012.

Effectiveness of the investigation

  1. It has been established above that the applicant’s allegations of ill-treatment in custody were credible. The authorities therefore had an obligation to carry out an effective official investigation.
  2. The Court notes that the investigation into each incident of ill-treatment complained of by the applicant is still pending, the length of the investigation periods ranging from four to seven years.
  3. The Court further notes that the Government did not provide any document to report on the progress made by the authorities in an attempt to clarify the facts complained of by the applicant. Nor did they furnish any explanation as to why the inquiries had not yet been completed.
  4. In these circumstances, the Court considers that the authorities did not fulfil their obligation to carry out an effective investigation into the applicant’s allegations of ill-treatment, as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of pre-investigation inquiries conducted in the applicant’s case with a view to identifying specific deficiencies and omissions on the part of the investigating authority.
  5. There has been accordingly a violation of Article 3 of the Convention under its procedural aspect.

(ii) Incident of 25 September 2009

Alleged ill-treatment

  1. As regards the applicant’s allegations that on 25 September 2009 he had been severely beaten by the remand prison director and prison guards, the Court observes that the medical evidence submitted by the parties conclusively demonstrates that the applicant sustained injuries that were sufficiently serious. Accordingly, the question before the Court in the instant case is whether the State should be held responsible under Article 3 of the Convention in that respect.
  2. Having considered the material in its possession and the parties’ submissions before it, the Court will answer this question in the negative. In the Court’s view, the Government have discharged their obligation to provide a satisfactory and convincing explanation that the applicant’s injuries resulted from the use of force against him and that the force used to subdue him was necessary.
  3. The Court accepts the Government’s explanation that the applicant sustained an injury in the course of an altercation with the remand prison director and guards. Their argument is supported by the evidence collected and analysed by the domestic authorities in the course of the ensuing investigation and trial. In this connection, the Court reiterates that, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to disregard the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336).
  4. The Court notes that no material has been adduced in the course of the Court proceedings which could call into question the findings of the domestic authorities and add weight to the applicant’s allegations. The Court discerns no cogent elements in his submissions which could lead it to disregard the findings of fact of the domestic authorities.
  5. Accordingly, there has been no violation of Article 3 of the Convention with regard to the alleged ill-treatment by the police on 25 September 2009 under its substantive limb.

Effectiveness of the investigation

  1. As regards the effectiveness of the investigation into the incident of 25 September 2009, the Court observes that, in order to clarify the circumstances of the altercation between the applicant and the prison director and guards, the authorities took all the steps needed to scrutinise the applicant’s accusations. They questioned the applicant, the prison director, the guards and the medical professionals, including those who attended to the applicant’s injuries, and studied the reports prepared by them as well as the results of the forensic medical examinations. The judicial authorities reviewed the material gathered in connection with the investigation and questioned the witnesses for both the prosecution and the defence. The Court discerns nothing in the material in its possession to suggest that the domestic authorities’ approach in the present case lacked promptness, expeditiousness or thoroughness.
  2. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s complaint of ill-treatment in police custody was «effective». There has therefore been no violation of Article 3 of the Convention under its procedural limb.

 

  1. Alleged violation of Articles 3 and 13 of the Convention on account of the applicant’s conditions of detention and transport

 

  1. The applicant complained about the conditions of his detention and transport. He relied on Articles 3 and 13 of the Convention.

 

  1. Admissibility

 

  1. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

 

  1. Merits

 

  1. Article 3 of the Convention

 

(a) Conditions of detention in a temporary detention centre and remand prisons

  1. The applicant maintained his complaint.
  2. The Government were unable to comment on the population of the temporary detention centre in Odintsovo at the time when the applicant was detained there for lack of relevant records. They admitted that during the applicant’s detention in all the remand prisons in question the personal space allocated to the applicant had almost always been below the statutory standards as a consequence of the overcrowding of those remand prisons.
  3. Having duly considered the parties’ submissions, the Court accepts that the applicant was kept in overcrowded cells. Referring to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, , cited above, §§ 90 — 94; v. Croatia [GC], no. 7334/13, §§ 136 — 40, 20 October 2016; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139 — 65, 10 January 2012), the Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are «degrading» from the point of view of Article 3 and may disclose a violation, either alone or taken together with other shortcomings (see, amongst many authorities, v. Lithuania, no. 53254/99, § 39, 7 April 2005, and Ananyev and Others, cited above, §§ 145 — 47 and 149).
  4. In the leading case of Ananyev and Others, cited above, the Court has already found a violation on account of the applicants’ detention in overcrowded cells.
  5. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. It concludes, therefore, that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention on account of the conditions of his detention in the temporary detention centre in Odintsovo and remand prisons nos. IZ-50/1 in Mozhaysk, IZ-77/4 in Moscow and IZ-66/1 in Yekaterinbourg. There has been accordingly a violation of Article 3 of the Convention on that account.

(b) Conditions of transport to and from, and detention at, the court-house

  1. The applicant maintained his complaint as regards the conditions of his transport and detention at the court-house.
  2. The Government did not submit any comments as regards the population of the cells at the court-house or the duration of the applicant’s detention there. They argued that the conditions of the applicant’s transport had been in full compliance with applicable Russian and international laws.
  3. Having examined the materials submitted by the parties and the applicable case-law, the Court concludes that they disclose a violation of Article 3 the Convention in the light of its findings in cases of Idalov (see Idalov v. Russia [GC], no. 5826/03, §§ 103 — 08, 22 May 2012, concerning conditions of transport by prison van and conditions of detention at the court-house) and M.S. (see M.S. v. Russia, no. 8589/08, §§ 78 — 79, 10 July 2014, concerning conditions of transport by rail).

 

  1. Article 13 of the Convention

 

  1. The applicant maintained his complaint.
  2. The Government did not comment.
  3. Having duly considered the evidence in its possession and relying on its earlier findings in previous cases against Russia, the Court considers that the applicant did not have an effective remedy enabling him to complain about his conditions of detention and transport. There has accordingly been a violation of Article 13 of the Convention.

 

III. Alleged violation of Article 5 § 1 of the Convention

 

  1. The applicant complained that his arrest on 16 July 2008 and subsequent detention from 16 to 17 July 2008 and the pre-trial detention authorised by the court order of 18 July 2008 had been in contravention of Article 5 of the Convention, which reads, in so far as relevant, as follows:

«1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.]»

 

  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 parties’ submissions

 

  1. The applicant maintained his complaint. He argued that his administrative arrest and subsequent detention had been in contravention of Article 5 § 1 (c) of the Convention and that the Town Court’s failure to specify a time-limit when remanding him in custody had amounted to a gross and obvious irregularity that had rendered his pre-trial detention from 18 July to 15 September 2008 unlawful.
  2. The Government contested that argument. They submitted that on 16 July 2008 the applicant had been arrested in strict compliance with the Russian Administrative Code for his failure to comply with the policemen’s legitimate request for presentation of his identification document. He had resisted them and tried to abscond. His administrative arrest had been duly recorded and had not exceeded the statutory maximum of 48 hours. On 17 July 2008 the town police charged the applicant with the offence of drug possession. On 18 July 2008 the Town Court had authorised the applicant’s pre-trial detention. The fact that the Town Court had not specified the period of detention should not be construed as contravening applicable Russian laws or the Convention. The Town Court had not discerned any reason to remand the applicant in custody for a period shorter than the statutory maximum of two months.

 

  1. The Court’s assessment

 

(a) General principles

  1. The Court reiterates at the outset that Article 5 of the Convention protects the right to liberty and security. This right is of primary importance «in a democratic society» within the meaning of the Convention (see, amongst many other authorities, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; Assanidze v. Georgia [GC], no. 71503/01, § 169, ECHR 2004-II; and Ladent v. Poland, no. 11036/03, § 45, 18 March 2008).
  2. Everyone is entitled to the protection afforded by this right, namely the right not to be deprived, or continue to be deprived, of their liberty, save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention (see Medvedyev and Others v. France [GC], no. 3394/03, § 77, ECHR 2010). Where the «lawfulness» of detention is in issue, including the question of whether «a procedure prescribed by law» has been followed, the Convention essentially refers to national law. It requires at the same time that any deprivation of liberty be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see Bozano v. France, 18 December 1986, § 54, Series A no. 111, and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008).
  3. No detention which is arbitrary can be compatible with Article 5 § 1 of the Convention, the notion of «arbitrariness» in this context extending beyond a lack of compliance with national law. While the Court has not previously formulated a comprehensive definition of what types of conduct on the part of the authorities might constitute «arbitrariness» for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. Moreover, the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved. One general principle established in the case-law is that detention will be «arbitrary» where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see Mooren v. Germany [GC], no. 11364/03, §§ 77 — 78, 9 July 2009).

(b) Application of the principles to the present case

(i) The applicant’s arrest on 16 July 2008 and detention from 16 to 17 July 2008

  1. Turning to the circumstances of the case, the Court observes that, as established by the national judicial authorities, on 16 July 2008 the applicant was arrested in the course of a special operation conducted by the regional police department for combatting organised crime. The operation targeted the applicant specifically as a person suspected of extorting money from P. After the arrest, the specialised police unit charged and detained the applicant on the grounds of an administrative offence (failure to comply with a lawful order issued by the police).
  2. The Court also takes into account that, as explained by the Government, following the administrative arrest, the police had the right to detain the applicant for a further 48 hours and that the applicant was re-arrested on the criminal charge of heroin possession within that period.
  3. The Court cannot, however, subscribe to the Government’s view that the applicant’s arrest and detention on 16 and 17 July 2008 were lawful because they were based on the provisions of the Russian Administrative Code. The Court considers it necessary to look beyond appearances and the language used and concentrate on the realities of the situation (see Kafkaris, cited above, § 116, with further references, and Doronin v. Ukraine, no. 16505/02, § 55, 19 February 2009).
  4. Although an arrest and subsequent detention for the failure to comply with the order issued by the police would generally fall under Article 5 § 1 (b) of the Convention, the Court considers that the applicant was deprived of his liberty for the purposes of bringing him before the competent legal authority on suspicion of having committed the crime of extortion. His deprivation of liberty from 16 to 17 July 2008 therefore fell within the ambit of Article 5 § 1 (c) of the Convention. Even accepting as established the fact that in the course of the special operation the applicant did indeed refuse to present his identification document to the police, had resisted them and tried to abscond, the authorities’ decision to classify the applicant’s conduct as an administrative misdemeanour could not, in the Court’s view, exempt them from complying with the procedural guarantees associated with the applicant’s de facto status as a criminal suspect.
  5. Furthermore, the Court observes that, immediately after the arrest, the applicant was subjected to a search and the police found heroin on him. Nevertheless, the applicant continued to be detained on the administrative charges for a further day before the relevant criminal case was opened against him. No extortion charges were brought at all.
  6. It is not the Court’s task to assess the strategy chosen by the authorities. The situation in the present case, however, gives rise to the strong impression that the police used the administrative arrest to ensure the applicant’s availability as a criminal suspect, but did this without safeguarding his procedural rights, in particular the right to legal assistance.
  7. In the Court’s view, such conduct on the part of the police undermined the administration of justice and was arbitrary. The fact that the judicial authorities were aware of the situation and did nothing to rectify it is also a matter of serious concern to the Court.
  8. The above considerations are sufficient for the Court to conclude that the applicant’s arrest on 16 July 2008 and subsequent detention until 17 July 2008 were not «lawful» or «in accordance with a procecure prescribed by law». There has accordingly been a violation of Article 5 § 1 of the Convention.

(ii) The applicant’s detention from 18 July to 15 September 2008

  1. As regards the applicant’s complaint that, in contravention of the applicable laws, the District Court failed to specify a time-limit for his remand in custody on 18 July 2008, the Court notes that it has already examined similar complaints in a number of cases against Russia and found a violation of Article 5 § 1 of the Convention. The Court has established that the Russian rules of criminal procedure required that, when deciding that a defendant should be placed in detention, the court should specify its length. In its opinion, the failure to do so amounted to a «gross and obvious irregularity» capable of rendering the applicant’s ensuing detention arbitrary and therefore «unlawful» within the meaning of Article 5 § 1 (see, for example, Logvinenko v. Russia, no. 44511/04, §§ 35 — 39, 17 June 2010; Fedorenko v. Russia, no. 39602/05, §§ 52 — 57, 20 September 2011; and Rakhmonov v. Russia, no. 50031/11, §§ 50 — 53, 16 October 2012).
  2. Having examined the evidence in its possession, the Court sees no reason to reach a different conclusion in the present case. Consequently, the Court finds that the applicant’s detention on the basis of the court order of 18 July 2008 was not «in accordance with a procedure prescribed by law». There has accordingly been a violation of Article 5 § 1 of the Convention.

 

  1. Alleged violation of Article 5 § 3 of the Convention

 

  1. The applicant complained that his pre-trial detention had not been justified by relevant and sufficient grounds. He relied on Article 5 § 3 of the Convention, which reads, in so far as relevant, as follows:

«Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be… entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.»

 

  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. Period to be taken into consideration

 

  1. As noted above, the applicant was detained from 16 July 2008, when he was arrested, to 17 December 2009, when he was convicted by the trial court. Accordingly, the total length of the applicant’s detention amounted to 1 year, 5 months, and 2 days.

 

  1. Whether there were relevant and sufficient grounds justifying the applicant’s detention

 

  1. The Government submitted that the applicant’s detention had been in strict compliance with national legislation. The authorities had relied on relevant and sufficient reasons when deciding to detain him.
  2. The applicant maintained his complaint.
  3. The Court has examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention on numerous previous occasions. It found violations of that Article on the grounds that the domestic courts had extended an applicant’s detention by relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many other authorities, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Logvinenko v. Russia, no. 44511/0417 June 2010; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).
  4. Having duly considered the material in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court considers that by failing to address specific facts or consider alternative preventive measures, the authorities extended the applicant’s detention on grounds which, although «relevant», cannot be regarded as «sufficient» to justify the applicant’s being remanded in custody for approximately a year and a half. In those circumstances it is not necessary to examine whether the proceedings were conducted with «special diligence».
  5. There has accordingly been a violation of Article 5 § 3 of the Convention.

 

  1. Alleged violation of Article 6 of the Convention

 

  1. The applicant complained under Article 6 of the Convention about his exclusion from the trial. Article 6, in so far as relevant, reads as follows:

«1. 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:

(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;

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

 

  1. Merits

 

The parties’ submissions

 

  1. The applicant maintained his complaint. He submitted that, following his removal from the courtroom on 17 December 2009, certain evidence had been examined in his absence. The fact that the applicant and his lawyer had attended the appeal hearing had not remedied the deficiency as regards the trial.
  2. The Government pointed out that the applicant had been removed from the courtroom for repeated disruptive behaviour and for showing disrespect towards the court.

 

The Court’s assessment

 

  1. Since the requirements of paragraph 3 of Article 6 of the Convention constitute specific aspects of the right to a fair trial guaranteed under paragraph 1, the Court will examine the applicant’s complaints under these provisions taken together (see, among other authorities, Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996-VI).
  2. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his or her entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II).
  3. Turning to the circumstances of the present case, the Court observes that on the last day of the trial the court decided to remove the applicant from the courtroom. As a result, certain evidence was examined in the applicant’s absence, which fact might raise a question as to the overall fairness of the criminal proceedings against the applicant.
  4. The Court notes that, in the course of the trial, the applicant repeatedly disrupted the proceedings. He burnt pages from the case file, insulted and threatened witnesses and other parties to the proceedings, ignoring the warnings of the presiding judge. The Court further notes that, on the last day of the trial, the applicant was removed from the courtroom after resuming his unruly behaviour.
  5. In this connection, the Court reiterates that it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither can nor should be tolerated (see Idalov v. Russia [GC], no. 5826/03, § 176, 22 May 2012).
  6. The Court accepts that the applicant’s behaviour was of such a nature as to justify his removal and the continuation of his trial in his absence. The Court is also satisfied that, prior to the removal, the applicant had been fully and fairly informed that his conduct was wrong and intolerable, and had been warned of the possible consequences of his misbehaviour. Accordingly, for the Court there is no doubt that the applicant, by persisting in his reprehensible conduct, waived his right to be present at the trial.
  7. Lastly, the Court notes that applicant’s waiver was attended by minimum safeguards. The applicant’s lawyer took part in the hearing and duly conducted the applicant’s defence.
  8. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (c) and (d) 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 940,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government considered the applicant’s claim excessive. In their opinion, the finding of a violation would constitute sufficient just satisfaction.
  3. The Court observes that it has found a combination of violations in the present case. The applicant was subjected to ill-treatment in custody. The investigation into his allegations of ill-treatment was ineffective. The applicant was detained and transported in deplorable conditions. His arrest and detention from 16 to 17 July 2008 was unlawful. His detention was not justified by sufficient grounds. In such circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant the amount sought, namely EUR 26,000, in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. The applicant also claimed EUR 9,150 for the costs and expenses incurred before the Court. In particular, he submitted that his representatives had spent nine hours studying the case file, six hours drafting letters to the applicant and various State agencies and discussing the matter with the applicant by telephone, nineteen hours preparing an application form and attachments to it, and twenty-seven hours preparing observations on behalf of the applicant.
  2. The Government considered the applicant’s claims unnecessary and unsubstantiated.
  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, taking account of the documents in its possession, the above criteria and the fact that legal aid has been granted to the applicant, the Court considers it reasonable to award the sum of EUR 4,000 in respect of the proceedings before it, in addition to the sum paid by way of legal aid.

 

  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. Decides to strike the applicant’s complaint under Article 3 of the Convention concerning alleged ill-treatment on 24 June 2012 out of its list;
  2. Declares the remainder of the complaints admissible;
  3. Holds that there has been a violation of Article 3 of the Convention under its substantive limb on account of the applicant’s ill-treatment in custody on 21 May 2009, 29 October 2010, and 29 September and 1 October 2012;
  4. Holds that there has been a violation of Article 3 of the Convention under its procedural limb on account of ineffective investigation into the applicant’s allegations of ill-treatment occurring on 21 May 2009, 29 October 2010, and 29 September and 1 October 2012;
  5. Holds that there has been no violation of Article 3 of the Convention on account of the alleged ill-treatment on 25 September 2009;
  6. Holds that there has been a violation of Articles 3 and 13 of the Convention on account of the conditions of the applicant’s detention and transport;
  7. Holds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s arrest on 16 July 2008 and ensuing detention from 16 to 17 July 2008;
  8. Holds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention authorised by the court order of 18 July 2008;
  9. Holds that there has been a violation of Article 5 § 3 of the Convention;
  10. Holds that there has been no violation of Article 6 of the Convention;
  11. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President
Stephen PHILLIPS Registrar

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